Perhaps the most contentious US government surveillance law on the books will be reauthorized, reformed or allowed to expire by the end of the year.
And with the deadline just over two months away, the rhetorical temperature and legislative maneuvering on both sides is spiking over the merits of Title VII of the Foreign Intelligence Surveillance Act (FISA) – specifically the portion known as Section 702.
The Senate Intelligence Committee voted 12-3 this week to renew it for eight years, with only a minor tweak. On the other side, a group of 14 senators announced a bill they are calling the USA Rights Act [PDF] that would impose reforms to Section 702 sought by privacy advocates, but that intelligence officials contend would give terrorists and criminals the cover they want.
The heated debate is focused on domestic intelligence collection. One of Section 702’s original purposes was to allow the National Security Agency (NSA) to monitor the communications of foreigners located abroad to gather what was the agency’s original mission: foreign intelligence.
But, as has been widely reported since FISA was created in 2008, and as the revelations of former NSA contractor Edward Snowden documented, since 9/11 that collection has been both foreign and domestic, to include US citizens.
The communications of millions of Americans who were not specific targets have been “incidentally” included. And much of that “incidental” data, critics say, has been made available to other intelligence agencies like the FBI and CIA in what they have consistently called, “warrantless surveillance.”
So the lines are drawn, with predictable players on each side. Privacy advocates, warning that Section 702 enables an unconstitutional, Big Brother-like police state, are calling for major reforms that would put restrictions and strict limits, along with more intense oversight, on what information can be collected on American citizens. The USA Rights Act addresses a number of those concerns.
On the other side, law enforcement and national security officials contend that they are simply trying to keep America safe, and warn that any weakening of Section 702 will blind them, making it much harder to detect potential terrorist attacks.
A large majority of the Senate Intelligence Committee is obviously in their corner, given this week’s vote out of committee. That vote was private, however, which also meant the text of the bill was private.
With votes in the full Senate now pending on both, the campaign to keep Section 702 in its current form has drawn, as expected, high-profile players. Among them:
- The chiefs of the US Department of Justice (DoJ) and intelligence services – Attorney General Jeff Sessions and Director of National Intelligence (DNI) Dan Coats – chose the 16th anniversary of 9/11 this past September to publicly urge Congress to reauthorize FISA.
- Three months prior to that, Sen. Tom Cotton (R-Ark.) had filed a bill (with 13 cosponsors, all Republican) that would reauthorize Section 702 permanently, without modification.
- Christopher Wray, the new FBI director, spoke at the Heritage Foundation earlier this month and warned of “well-intentioned” but misguided opponents to Section 702 seeking to rebuild the “walls” that separated intelligence agencies prior to 2001, which he said was a major factor in the success of the 9/11 attackers.
- A group of 16 former top intelligence officials, led by retired General and former NSA director Keith Alexander, sent a letter this week to key members of Congress urging them to reauthorize Section 702, contending that it is, “the most effective mechanism to protect the US from the very large number of real threats that use American email and Internet services.”
But opposition to the law is equally intense. Two years ago, 10 organizations including the Electronic Frontier Foundation, Center for Democracy & Technology, American Civil Liberties Union, Brennan Center for Justice, New America’s Open Technology Institute and Restore the Fourth, issued a statement [PDF] titled “Warrantless Surveillance under Section 702 of the FISA Amendments Act: Myths and Facts.”
Among the group’s contentions:
- A 2015 letter from then DNI James Clapper confirmed that the collection of intelligence about Americans’ communication is intentional, not incidental.
- Section 702 warrantless spying is not just about terrorism. It is allowed as long as “a significant purpose” of the surveillance is to obtain broadly defined “foreign intelligence information,” which can include monitoring of journalists and/or activists.
Robyn Greene, the policy counsel and government affairs lead for the Open Technology Institute at New America, wrote this past June in Politico that the NSA and CIA, which track how often they conduct “backdoor” searches, did so 5,288 times in 2016 alone.
According to Reuters, an anonymous source said the Intelligence Committee vote to reauthorize 702 included unanimous approval of an amendment by Sen. Mark Warner, the committee’s Democratic leader, that would require the FBI to get FISA court approval for any queries it makes for US data.
But the proposed USA Rights Act, authored by senators Ron Wyden (D-OR) and Rand Paul (R-KY), would go much further than that. Among its provisions:
- End so-called “back-door” searches, which the sponsors said allow government to conduct, “unlimited, warrantless searches through the vast data collected under Section 702 for private communications to, from and about Americans.”
- End “reverse targeting.” The bill would require a warrant when, “a significant purpose of targeting foreigners is to collect the communications of Americans.”
- Codify the ban on “abouts” collection, which is the collection by government of, “communications that are not to or from a foreign target, but merely about a foreign target and can be entirely between Americans.”
- Prohibit collection of entirely domestic communications.
- Strengthen the Privacy and Civil Liberties Oversight Board (PCLOB) by authorizing it to review all foreign intelligence surveillance programs, not just those related to terrorism.
- Strengthen external oversight by allowing outside plaintiffs to challenge the constitutionality of the law’s authority.
- Require congressional reauthorization in four, not eight, years.
There is no word yet on when either bill will come before the Senate.