With fewer than 90 calendar days remaining before the expiration of section 702 of the Foreign Intelligence Surveillance Act (FISA), this week ALA joined the ACLU and a host of other major national privacy advocates in calling on the leaders of the House Judiciary Committee not to reauthorize the program without adding substantial new privacy protections necessary to make the program constitutional. The fundamental flaw in 702, as reported in Politico’s coverage of the letter from almost 60 organizations, is that it “authorizes surveillance of people who are not ‘U.S. persons’ reasonably believed to be outside U.S. borders – but it vacuums up an unknown amount of data on Americans in the process.”
Closing this so-called “backdoor search loophole” is the single most important reform backed by ALA and its coalition partners. For their part, leaders of the intelligence community recently wrote to congressional leaders in both chambers urging that the program be reauthorized without any changes and made permanent rather than subject to a new “sunset” date. (It’s just such a deadline, however, that’s forcing scrutiny of the program and the present reform debate.)
If passed, a June 2017 bill (S. 1297) by Senator Tom Cotton (R-AR) and backed by 13 other Senate Republicans, would do exactly as they wish. As widely reported, however, many other members of Congress – including the bipartisan leadership of both chambers’ Judiciary Committees with jurisdiction over section 702 – oppose clean reauthorization of the law without additional safeguards for civil liberties.
The House Judiciary Committee’s initial legislative proposals were just unveiled yesterday as the “USA Liberty Act” and are expected to change before being debated and voted on by the Committee, possibly as early as the week of October 23. As summarized by the Committee, the bill does constructively limit the use of information collected without a warrant for domestic criminal prosecutions, as well as sweeping so-called “about” searches of collected data. Initial reactions by major civil liberties organizations, while appreciative of those proposed changes, have been qualified and uniformly call for far greater reforms to section 702 than those detailed in the new bill.
The final shape of 702 reform legislation is still unclear, but the looming deadline to complete a bill by year’s end is now in legislators’ sharp focus. What is certain is that legislative debate now has begun in earnest and it will be fast, furious and high-stakes. All members of Congress will need to hear from their constituents at home that reforms are essential when the time is right.
That time will be very soon and ALA’s Washington Office will, as always, provide timely alerts of how and when to take action. The law is complicated, but the main message to Congress won’t be: “please don’t reauthorize section 702 the without closing backdoor search loophole now.”
Additional General Resources:
Warrantless Surveillance Under Section 702 of FISA
American Civil Liberties Union (2017)
Reforming Section 702: We Can Protect Americans’ Privacy and Protect Against Foreign Threats
Brennan Center for Justice (August 2017)
What is 702 and Why Should I Care? (infographic)
Arab American Institute (September 2017)
A History of FISA Section 702 Compliance Violations (interactive timeline and chart)
New America Foundation Open Technology Institute (September 2017)
Section 702 of the Foreign Intelligence Surveillance Act (FISA): Its Illegal and Unconstitutional Use
Electronic Frontier Foundation (undated)