On Tuesday, a bipartisan group in Congress proposed legislation to rein in a controversial loophole in the Foreign Intelligence Surveillance Act (FISA) that provisions U.S. spy agencies with a legal loophole to conduct warrantless surveillance on American citizens.
The bill, co-sponsored by Senate privacy hawk Ron Wyden, big government skeptic Rand Paul and 11 other senators, including Bernie Sanders and Elizabeth Warren, is known as the USA Rights Act. A companion piece of legislation is proposed in the House, sponsored by Reps. Beto O’Rourke, Ted Poe, Zoe Lofgren and Justin Amash.
“The American people deserve better from their own government than to have their internet activity swept up in warrantless, unlimited searches that ignore the Fourth Amendment,” Sen. Paul said. “Our bill institutes major reforms that prove we can still protect our country while respecting our Constitution and upholding fundamental civil liberties.”
The timing comes on the day of a closed Senate Intelligence Committee session debating a bill that would reauthorize the controversial and not widely understood law, which is set to expire at the end of this year unless renewed by Congress.
The legislation seeks to limit Section 702 surveillance with several specific stipulations, but most meaningfully it would require intelligence agencies to obtain a warrant to surveil “private
communications to, from and about Americans.” It would specifically forbid the collection of communications from any Americans talking about a foreign target, a practice known as “about” collection, as well as banning the use of Section 702 to authorize any domestic communications. The bill also would beef up FISA court oversight and build in a sunset date of four years, after which time the legislation would need to be reauthorized.
The legislation debated today in the Senate Intel committee, introduced by committee chair Richard Burr, would uncritically reauthorize Section 702 as we know it through 2025 while making it even easier for spy agencies to potentially infringe on the rights of American citizens. Beyond extending the sunset date, Burr’s draft would allow intelligence agencies to resume spying on communications that make mention of a specific foreign target, widening the scope of surveillance well beyond current interpretations of the law that allow only for intercepting communications sent to or from a named target.
The Electronic Frontier Foundation, one of Section 702’s strongest critics and online privacy’s staunchest defenders, recently questioned new FBI Director Christopher Wray’s defense of the surveillance loophole, particularly the government’s unwillingness to publish numbers about how many Americans have been swept up in the process of 702 surveillance or to provide any evidence that the practice is in fact making the country safer in a quantifiable way.
“Section 702 needs review, and many parts of it—including the backdoor search—do not measure up to Wray’s justifications,” the EFF writes. “If the government can prove that warrantless search of American communications keeps Americans safe, why does Wray rely on hypotheticals?”
Section 702 is hotly contested for its role in a surveillance practice known as incidental collection, in which communications unrelated to a surveillance target are swept up in the process. This can result in government spy efforts indirectly targeting American citizens, a process that under normal lawful practice would require a search warrant.
“Requiring a warrant for a search of information or personal data if the inquiry is about an American citizen is simply the constitutional and right thing to do,” said Rep. O’Rourke, a sponsor of the House version of the bill. “The USA RIGHTS Act is a bipartisan, bicameral and basic, commonsense piece of legislation that safely reforms Section 702.”