Jan. 10, 2018
Tomorrow, the House of Representatives is expected to vote on the House Intelligence Committee’s bill, the FISA Amendments Reauthorization Act of 2017 (S. 139; formerly H.R. 4478), which would expand and reauthorize Section 702 of the Foreign Intelligence Surveillance Act for six years. New America’s Open Technology Institute (OTI) strongly opposes this bill. It fails to make any meaningful reforms to Section 702. Instead, the bill would codify two of the most concerning government practices. It would:
Codify and could be interpreted to expand “abouts” collection. “Abouts” collection is part of upstream surveillance where the government collects not only communications that are “to” and “from” a target, but also those that are “about” a target. The FISA Court has forced the government to shut down “abouts” collection twice, most recently because the government consistently failed to comply with mandatory minimization procedures to protect Americans’ privacy. The bill would not only codify this type of collection, but it could be read to expand it by permitting unintentional “abouts” collection, and permitting the collection of communications that merely reference targets, but do not contain “selectors” (i.e. email addresses and phone numbers) of targets under Section 702.
Codify the “backdoor search” loophole that is currently exploited to warrantlessly search through Section 702 data for Americans’ communications. The underlying bill would codify the current FBI, NSA, CIA, and NCTC practice of warrantlessly – and for the FBI, routinely – searching for and accessing the contents and metadata associated with Americans’ communications that have been collected incidentally through Section 702 surveillance. This bill pretends to address this problem by requiring the FBI to obtain a warrant before accessing Americans’ communications when conducting a search related to a predicated investigation (i.e. once there’s already a factual basis for the investigation). However, the FBI would still be free to conduct unlimited warrantless searches before the “predicated” investigation stage, such as before and during assessments, which require no factual basis whatsoever that the American was engaged in any wrongdoing. By the time an investigation is predicated, the FBI will have already warrantlessly searched for and accessed all of an investigative target’s communications that were swept up in Section 702 surveillance. The warrant requirement is also further weakened by broad exceptions.
However, tomorrow, members of Congress will also have the opportunity to vote on an amendment introduced by Representative Amash, along with 42 cosponsors, to strike the text of the House Intelligence Committee’s bill and replace it with the text of the USA Rights Act. OTI and a coalition of 44 privacy, civil liberties, civil rights, and transparency groups support this amendment. The USA Right Act amendment would enact meaningful reforms to protect Americans’ privacy, including, most importantly, requiring intelligence agencies to obtain a warrant based on probable cause before searching databases containing Section 702 information for Americans’ communications, closing the so-called “backdoor search loophole,” and codifying the end to “about” collection by clarifying that Section 702 only permits the collection of communications that are “to” and “from” targets.
If the House does not pass the Amash amendment, it should reject the FISA Amendments Reauthorization Act and demand that leadership allow an up-or-down vote on a meaningful reform bill.
The following statement can be attributed to Robyn Greene, Policy Counsel and Government Affairs Lead, New America’s Open Technology Institute:
“The House Intelligence Committee’s bill is a slap in the face to every member of Congress, privacy advocate, and American who has called for reforms to Section 702. The bill makes a bad law worse. It makes no meaningful reforms to Section 702, codifies two of the government’s most concerning practices – backdoor searches and “abouts” collection – and potentially even expands “abouts” collection. The USA Rights Act, on the other hand, is a real reform bill that would offer robust new protections for Americans’ privacy. Congress should pass the Amash amendment to replace the House Intelligence Committee’s surveillance expansion bill with the USA Rights Act; otherwise, it’s incumbent on members to reject the bill and demand real reform.”