Congress must defend rights of Americans

The Congress will soon have the choice of either reining in government abuses of surveillance powers or perpetuating them.

With Section 702 of the 2008 FISA Amendments Act set to expire on Dec. 31, civil liberties advocates are making a needed push for reforms to protect Americans from warrantless surveillance.

Section 702 allows the government to conduct surveillance of non-Americans located outside the U.S. without a warrant. While ostensibly intended to collect information solely on non-Americans, with about 100,000 people targeted for surveillance every year, it is inevitable that the communications of Americans are also collected.

While the director of National Intelligence has, to date, refused to produce figures as to how many Americans have had their communications “incidentally collected,” despite requests from Sen. Ron Wyden, D-Oregon, as far back as 2011, the idea that the government is collecting and storing Americans’ information obtained without a warrant is untenable.

Though the federal government is hardly transparent about its surveillance practices, we do know that through the so-called “backdoor search loophole,” the government may search through National Security Agency databases for information about Americans collected through Section 702.

Among the most blatant abuses of Section 702 was the practice of collecting communications not just to or from foreign targets but merely about the foreign target. In 2011, this “about” surveillance was found by Judge John Bates, then chief judge on the Foreign Intelligence Surveillance Court, to have resulted in the collection of tens of thousands of domestic emails and other internet communications and violating the constitutional rights of Americans. After some safeguards were put in place, the practice was allowed to continue, until being ended by the NSA this past April.

With the looming sunset of Section 702, there is an opportunity to close the backdoor search loophole and permanently end “about” surveillance.

One pitch to reform and extend Section 702 is the USA Liberty Act of 2017 introduced by members of the House Judiciary Committee, including Bob Goodlatte, R-Virginia, and John Conyers, D-Michigan.

On the bright side, the bill would prohibit “about” collections until September 2023, and in the case of certain criminal investigations, require a warrant to be obtained before the government can review the content of communications collected under Section 702.

But unfortunately these reforms don’t go nearly far enough. For one, “about” collections should be permanently prohibited. Second, the bill only partly closes the backdoor search loophole and allows warrantless searching of 702 data so long as it’s done in the name of “foreign intelligence.” Further, the bill should at least require an estimate as to how many Americans have had their communications collected without a warrant.

As Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, said in a statement, “The bill would still allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge.”

The reform bill is a step in the right direction, but needs to be strengthened. Unless the Congress can fulfill its responsibility to defend the constitutional rights of Americans, and put in place strict limits on surveillance powers, Section 702 should simply be allowed to expire.