Section 702 of the Foreign Intelligence Surveillance Act (FISA) as amended in 2008 allows the intelligence community to monitor the communications of foreign targets outside of the United States. However the law is set to expire at the end of 2017 unless Congress and the President reauthorizes it before then. The House has introduced its bill titled, USA Liberty Act of 2017 (H.R. 3989), while the Senate has introduced two versions this week. While there are still some concerns with this bill, we believe this is likely to be the most reform-minded version of the text that will be seriously considered. The Senate bills include one that is a good bill, but not likely to be seriously considered, while another has been put out by the Intelligence panel that will simply authorize the bill as-is. Therefore we will only rate and score this version.
FISA originated in 1978 as a mechanism to allow the surveillance of foreign intelligence information and agents of foreign powers suspected of espionage or terrorism. It was later amended as part of then President George W. Bush’s post 9/11 effort which authorized the National Security Agency to spy on Americans and others in the United States without a warrant under a presidential order in 2002. The goal was to search for evidence of terrorist activities inside the United States. In 2008, Section 702 was amended to allow the collection of foreign intelligence from non-Americans outside of the United States.
There are concerns over how intelligence agencies and domestic law enforcement interpret the law. There are also basic constitutional and privacy concerns with the provisions in the statute, at least with regard to American citizens. There is no express permission for collecting data on Americans, yet intelligence agencies regularly use the law to collect that information they claim to have been gathered on an “incidental” basis. Americans who have contact with a suspected target, for any reason, can also have their data collected and stored – even though Americans are entitled to 4th Amendment rights that require a warrant for search and seizure. The issue with this collection method is that this information has been used by domestic law enforcement, namely the FBI as a way to gain access to the American content without a warrant. Vague language is used by the FBI to access the data, and use it as evidence for any offense. The law has obviously gained notoriety by privacy organizations for the scope, and the way data is obtained on Americans.
Problems With The House Bill (H.R. 3989)
H.R. 3989 has a host of problems, for both content and non-content. One of the main problems arises because the communications related information (content and non-content) has already been seized pursuant to other authority. The warrant or authorization will allow the already-gathered information to be “queried” (or, in constitutional terms, “searched”). The 4th Amendment, however, protects against improper searches, but it also separately protects against improper “seizures” and this bill does nothing to deal with the “seizure” aspect; the bill apparently assumes that the seizure was proper and allowable under the Constitution, but that is simply not so, since the 4th Amendment requires probable cause before the seizure can occur just as much as it does before the search can occur, unless one of the judicially-imposed exceptions applies.
Setting aside this significant problem, the bill suffers from other large defects. The main defects come from the fact that the bill does not apply the same standards and procedures to seize and search the content of electronic communications as apply to other electronic communications:
- The application goes to the FISA court, not an Article III district court or magistrate.
- The Attorney General does not have to provide the same level of detail that is required for a domestic “interception” warrant under 18 U.S.C. §2518(1)(a)-(f), and the FISA court does not have to make the same findings a district court of magistrate must find under 18 U.S.C. §2518(3) and (4) for interceptions. Nor is there an exclusion rule, unlike 18 U.S.C §2515.
- Similarly, the “warrant” application and the warrant itself do not have to comply with Federal Rules of Criminal Procedure Rule 41, in that the application and warrant do not have to specify the basis for probable cause or state with particularity “the person or property to be searched, identify any person or property to be seized” (Rule 41(e)(2)(A), nor is a Rule 41(f)(1)(B) inventory required, or even a return of the warrant to the issuing court.
- There is no requirement that the government provide any post-collection report to the court like that required for pen register/trap and trace installations in 18 U.S.C. §2123(3)(A), including “the information that was collected” as a result of the query.
- Subsection C has several “exceptions” that would still allow for searching previously seized communications through a query (both contents and non-content) without a warrant and with no review or protection.
This bill does not comply with the 4th Amendment with regard to contents, and grants far too much power to the government to look at metadata for almost any reason. It will allow domestic law enforcement to use data seized for counterintelligence purposes to be used against Americans without notice and in ways that do not comport with the 4th Amendment or reasonable expectations of privacy.
There are some major issues with the current law, including the retention of the data collected on non-criminal Americans. That information is stored without any intention of purging, meaning it can be stored indefinitely and is thus susceptible to abuse. Section 702 is a broadsword for the intelligence community, with virtually no oversight as it is currently written. Our partners at the Center for Democracy and Technology offered two very simple solutions that would both accomplish the intended goal of Section 702, and prevent the rampant abuse by law enforcement. They are as follows:
- Permit surveillance under Section 702 for the full breadth of foreign intelligence information, but require the target of surveillance be an agent of a foreign power, when the basis for targeting a person is merely to collect information that relates to the catchalls – foreign affairs and national security.
- Limit the types of foreign intelligence information that can be collected to the six national security uses, which, collected in bulk, can be put under PPD-28: espionage, terrorism, WMD proliferation, cybersecurity threats, threats to U.S. and allied armed forces, and transnational crime.
We recognize the necessity of Section 702, and the tool it represents in the global fight against terrorism. However, opportunistic domestic law enforcement agencies have abused it to circumvent the constitution, and it’s deserving of the negative attention received in its effort to target law-abiding Americans. We hope the House and Senate finalize a bill that reflects these concerns, and amend Section 702 to limit its impact on suspected terrorists. Until then, this bill as written receives a 2 out of 5 – meaning while the Section 702 is a necessary tool to combat terrorism, its execution is an all-out attack against our constitutional rights as Americans.
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