GOP & Dem lawmakers introduce 1st bill to limit warrantless surveillance
The Republican and Democratic leaders on the House Judiciary Committee unveiled the “USA Liberty Act” on Wednesday. The legislation would renew Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes the collection, use, and dissemination of electronic communications and metadata.
A discussion draft of the bill, obtained by the CATO Institute, adds some restraints on law enforcement’s ability to access Americans’ data. The bill would also extend the surveillance authority, which is set to sunset at the end of this year, until 2023.
While Section 702 only allows US intelligence officers to gather and store digital communications on foreign suspects living outside the US, former US intelligence employee Edward Snowden showed that the program has also gathered information on US citizens who were not surveillance targets and were not communicating with targets.
The information gathered on US citizens could then be subject to warrantless searches by the FBI and used as evidence in a criminal court, creating what some critics call a “backdoor search loophole.”
Under the drafted legislation, the FBI would be required to obtain a warrant when searching 702 data for information regarding a criminal case unless they obtain approval from a higher level or the “primary purpose” of the query was “returning foreign intelligence information.”
The draft also states that 702 metadata cannot be “the sole basis” for establishing probable cause and limits gathering information on a person to “communications to or from the targeted person.”
Additionally, the draft would require any data that does not contain foreign intelligence information to be purged within 90 days. However, the Director of the NSA could waive that requirement on an individualized and specific basis if they determine that the information is “necessary to protect the national security.”
In June, Senator Tom Cotton (R-Arkansas) and other Republican senators introduced a bill that would make the original provision permanent without any changes. However, the bill did not make it past the first hearing at the Judiciary Committee.
At a Senate intelligence hearing in June, Director of National Intelligence (DNI) Dan Coats said that renewing the surveillance initiative is the “intelligence community’s top legislative priority,” adding that the information gathered has saved "hundreds of lives."
Attorney General Jeff Sessions and National Intelligence Director Dan Coats sent a letter to leaders of both parties in September, calling on them to reauthorize Section 702’s “clean and permanent form,” arguing that it "produces significant foreign intelligence that is vital to protect the nation against international terrorism and other threats."
Critics have come out against the drafted legislation, arguing that it does not do enough to protect civil rights.
On Wednesday, the President and CEO of the Center for Democracy & Technology (CDT), Nuala O’Connor, said that the drafted legislation “marks an important step forward for reining in the overly broad government surveillance revealed by Edward Snowden more than four years ago.”
However, O’Connor argued that the legislation does not close the “backdoor search loophole,” which, she said “leaves Americans exposed to surveillance that should be permitted only with a court order based on a showing of probable cause.”
On Tuesday, the American Civil Liberties Union (ACLU) and 58 other organizations sent a letter to Rep. Bob Goodlatte (R-Virginia), Chairman of the House Judiciary Committee, calling for the reform proposal to end the “backdoor search loophole.” They called for legislation that would ensure all agencies would be required to obtain a warrant based on probable cause before they could search 702 data for information on any US citizens or residents.
Last week, researchers from the Open Technology Institute found that the NSA and FBI violated Section 702 more than 200 times over the last 10 years. The violations include over-collecting data, violating attorney-client privilege, and conducting unlawful surveillance of Americans.
The USA Liberty Act is expected to be formally introduced as soon as Thursday, according to Reuters.