This Bill Continues Warrantless Access to Email and Phone Calls
Section 702 of the Foreign Intelligence Surveillance Act is a critical national security tool set to expire on January 19, 2018. With the proper set of reforms in place—changes that preserve its effectiveness while protecting the privacy of Americans swept up into government surveillance — House Judiciary Committee Ranking Member Jerrold Nadler and House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations Chairman F. James Sensenbrenner—would fully support its reauthorization. Such a measure, H.R. 3989, the USA Liberty Act, passed out of the House Judiciary Committee overwhelmingly.
Tomorrow, the U.S. House of Representatives will consider S. 139, a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Ranking Member Nadler and Subcommittee Chairman Sensenbrenner will strongly oppose this legislation.
When House Republican leadership announced it would take up S. 139, House Judiciary Committee Ranking Member Jerrold Nadler released the following statement in opposition to the bill:
“This so-called ‘reform’ bill was written by the intelligence community, for the intelligence community, which is why it fails to accomplish any meaningful reform to Section 702 or ensure our constitutional right to privacy—unlike the bipartisan and overwhelmingly supported bill that passed the House Judiciary Committee.“The new warrant requirement in this bill, such as it is, is a fig leaf for reform and fails to address the vast majority of searches of 702 information. “I, along with the many Members from both sides of the aisle who wanted real reform to Section 702, will oppose S. 139, which is a warmed-over version of a bill that has already been panned by companies, as well as the privacy and civil liberties community. I urge my colleagues to instead support amendments to this bill that would achieve reasonable, meaningful reforms.”
FACT: THE FISA AMENDMENTS REAUTHORIZATION ACT FALLS SHORT
- The bill fails to consider the core concern of most members—the government’s use of Section 702 information against United States citizens in investigations that have nothing to do with national security.
- The warrant “requirement” applies only to fully predicated, official investigations—and not to the hundreds of thousands searches the FBI runs every day, just to run down a lead or check out a tip. The FBI admits that they will almost never be forced to use a warrant to access your email or phone calls.
- This requirement applies only to the FBI. Civil liberties groups are rightfully concerned that other agencies will begin to use this treasure trove of information in immigration, tax, and drug enforcement cases completely unrelated to national security.
- As limited as it already is, the warrant provision is riddled with loopholes. It does not apply to any search “related to national security”—but the bill does not define this term, and the government will likely use the ambiguity to allow a large number of purely domestic searches.
- Similarly, a general exception for information that “could assist in mitigating a threat” could swallow the entire rule. The Fourth Amendment permits a carefully tailored emergency exception to protect the public—but any search might assist in mitigating a threat, and this language will permit a wide range of unconstitutional searches.
- The bill also codifies so-called “about collection,” a type of surveillance that was shut down after it twice failed to meet Fourth Amendment scrutiny. The concept of “about collection” appears nowhere in the statute. Pretending to reform it in this manner gives the government permission to continue a practice that sweeps in massive amounts of purely domestic communications. It makes Section 702 worse, not better.
- The proposal grants some committees 30 days to review any effort to turn “about collection” back on—but Congress would have no meaningful opportunity to prevent the government from doing so.
HERE IS WHAT THE GROUPS ARE SAYING
Electronic Freedom Foundation: “Like the earlier bills written by the House Permanent Select Committee on Intelligence, the new proposal does not protect the communications of Americans from these warrantless searches. While we are pleased that the proposal being considered does not contain an “optional warrant requirement,” the new warrant requirement still fails to address the vast majority of 702 searches. The new provision only requires a warrant for a full-blown, predicated criminal investigation, and by the FBI’s own admission, will rarely be used.”
Center for American Progress Action Fund: “S. 139, the FISA Amendments Reauthorization Act of 2017, does not contain the necessary safeguards. Rather, it would likely provide the government a powerful tool for political spying on Americans. Recent events make clear that there is a real danger that government surveillance authorities will be used to target political opponents and groups based on their religion, ethnicity or race. And there is reason to be concerned that section 702 provides an easy means of political spying with little possibility of discovery.”
Brennan Center for Justice: “[T]he bill permits warrantless searches of Americans’ communications during “assessments” — i.e., investigations that are at an earlier stage. Because the government could still search the 702 data without a warrant at the early stages of its investigations, the FBI acknowledged to lawmakers that the bill’s warrant requirement would rarely apply in practice.”
ACLU: “It leaves the door wide open to abusive surveillance practices that allow the government to search the intimate emails, text messages, and other sensitive data of Americans without a warrant of any kind. This could easily permit Section 702 to be used as a tool to improperly target minorities, government critics, and marginalized communities.”
Open Technology Institute: “The bill could be read to permit unintentional ‘abouts’ collection, and, if ‘abouts’ collection is reauthorized by the Court, to permit the collection of communications that merely reference targets, but do not contain selectors (ex. email addresses and phone numbers) of surveillance targets under Section 702. This would represent a drastic expansion of the most concerning form of Section 702 surveillance.”
Github: “We urge you to stand up for the constitutional rights of your constituents and reject any proposal that does not ensure our communications ... is safe from warrantless surveillance.”
Aspiration Tech, Electronic Frontier Foundation, Freedom of the Press Foundation, Internet Archive: “Section 702, written expressly to allow surveillance of non-U.S. persons not living in the United States, is now used by the NSA to justify its collection of Americans’ emails, chat logs and browser history. ... Please, require any bill that extends Section 702 to include warrant requirements on American communications.”
PREPARED BY HOUSE JUDICIARY COMMITTEE DEMOCRATS