Earlier this week, Sen. Patrick Leahy introduced a strengthened version of the USA FREEDOM Act to praise from tech companies, privacy groups and the New York Times editorial board. As that initial applause settled, Rep. Zoe Lofgren argued on Thursday that the legislation would only rein in parts of the nation’s intelligence apparatus.
The Congresswoman did note that the bill is “an improvement” on the House’s watered-down version that recently passed.
Most notably, the Senate’s FREEDOM Act does not include provisions to address programs conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the government to target the communications of foreign persons outside the United States. Under Section 702 authority, the National Security Agency (NSA) often sweeps up the communications of U.S. citizens who aren’t being targeted, and holds onto it. The Washington Post has reported on extensive use — abuse, to some — of the program as revealed in files leaked to reporters by former government contractor Edward Snowden.
Lofgren said the FREEDOM Act “falls short” by failing to reform Section 702.
“Chairman Leahy’s bill is an encouraging improvement in many respects, and I applaud him for that. But I am disappointed it omits an essential restriction on the collection and use of American communications under 702 authority,” said the California Democrat in a statement.
After the House passed a weakened version of the FREEDOM Act that lost the support of many privacy advocates, Lofgren led the charge to pass an amendment to the Defense Appropriations bill to cut funding for so-called “backdoor searches.” Backdoor searches occur when intelligence agencies query data collected and stored under Section 702 for the communications of Americans. The NSA can’t collect the communications of United States citizens on purpose, but whatever it collects “incidentally” and stores in its efforts to collect the communications of foreign targets is fair game.
So, provided that it has collected and stored the communications of a U.S. citizen, the NSA can search that information under the authority of Section 702 without a warrant. The practice is controversial.
The amendment Lofgren sponsored in June passed with overwhelming support in the House, but Section 702 and backdoor searches were conspicuously missing from Leahy’s measure, presumably due to compromises the senator made to gain support from the White House.
Dozens of privacy groups sent a letter Wednesday to lawmakers, calling the Senate version of the bill “a good first step.”
And that’s a good way to think of the FREEDOM Act. It returns measures previously weakened in the House’s mark-ups, enhancing transparency provisions and reforms to the FISA Court. But as lawmakers and privacy groups push for this bill to see the floor, they shouldn’t forget about 702.