Government surveillance bill

What’s happening

Last week, the US House of Representatives passed the Reforming Intelligence and Securing America Act (RISSA), which would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) for another 2 years. Section 702, enacted in 2008, gives the US government authority to conduct surveillance on non-US persons overseas for national security purposes. It is scheduled to expire today, Apr 19, if the bill is not passed by the Senate (there are potential pathways to continue its authority should the deadline pass). The Senate agreed to move forward on a vote but it is unclear if they will do so before today’s deadline.

Section 702 details: The Section 702 database includes phone call, text, email, and metadata that the US government collects from “electronic communications service providers” such as Google and AT&T. Section 702 only permits the targeting of non-US persons outside the US, but data gathered in its system commonly includes that of US persons that have communicated with a foreigner overseas. The capture and searching of US person data under Section 702, which has been misused by the Federal Bureau of Investigation (FBI), is a practice privacy advocates aim to restrict.

Proposed changes to Section 702: RISSA and its companion amendments passed by the House last week would update key aspects of Section 702 authority, with changes that include:

• Requiring FBI supervisor approval for any agent conducting a US person search, reducing the number of FBI personnel authorized to conduct US person searches, and prohibiting the FBI from searching the database for a crime rather than for a national security issue.
• Expanding the approved use of the database to include vetting foreigners traveling to the US.
• Broadening the definition of electronic communication service providers (ECSP) required to provide data to the government upon request to include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications,” with certain exceptions.

Warrantless searches: A proposed amendment that would have required a warrant for any searches on US persons failed to pass on a tie vote 212-212. Warrantless searching is arguably Section 702’s most hotly debated issue, with privacy advocates calling for a warrant requirement in the name of civil liberties and opponents citing its potential to slow response time and weaken national security.

Much of the debate on Section 702 revolves around its tradeoffs between security and privacy. Read on to learn more and let us know what you think.

Notable viewpoints

MORE OPPOSED TO TIGHTENING SECTION 702 RESTRICTIONS

Section 702 is critical to national security.

• With high national security risks from threats such as Hamas, Houthi rebels, China’s threat to Taiwan, and Russia waging war, the US needs to prioritize foreign surveillance; the continuation of warrantless Section 702 searches with some checks on authority is the right combination of security and privacy.
• Since its passing in 2008, Section 702 has been instrumental in thwarting national security threats including a 2009 attempted NYC subway bombing, 2010 attempted bombing at a Portland Christmas tree lighting, cyber attacks, and fentanyl smuggling. (Summarized from White House recommendations on Section 702 reauthorization.)
• Key contributions of Section 702 to national security include the successful killing of al-Qa‘ida leader Ayman al-Zawihiri in 2022, prevention of weapons of mass destruction components from reaching foreign actors, and the thwarting of methamphetamine smuggling into the US.
• A significant proportion of national security intelligence depends on Section 702; 60% of the President’s Daily Brief in 2023 contained Section 702 information from the National Security Agency (NSA) and 70% of successful weapons and counterproliferation disruptions by the Central Intelligence Agency (CIA) between 2018-2022 were driven by Section 702 data.

A warrant requirement for Section 702 would be a risk to national security.

• A warrant for every search on US persons would needlessly slow intelligence processes where timeliness is critical.
• Probable cause for a warrant would be unrealistically difficult to determine quickly, given sophisticated actors would be able to hide or at least slow the detection of their probable cause of criminality; the result would be significant misses of key intelligence.
• Warrantless searches on US persons helped prevent a 2023 attack on critical US infrastructure when the FBI was able to research a US person who was communicating with a foreign terrorist.
• Data available under Section 702 is most valuable in the early stages of an investigation prior to probable cause being established; imminent threat exceptions proposed by warrant advocates would be too hard to identify from clusters of unknown data and likely miss critical information.

The House bill would put effective measures in place to prevent Section 702 abuse.

• New provisions would hold FBI personnel accountable for any abuses; for instance, disclosing confidential information on a US person would be punishable by up to 8 years in prison, and unauthorized surveillance of an individual punishable by up to 10 years in prison.
• The bill would codify measures the FBI has already self-imposed to curb its abuse; the Justice Department has said 98% of US person FBI searches in 2023 were “fully compliant” with Section 702 rules and the number of FBI searches involving US persons decreased from 2.9M in 2021 to 57,094 in 2023.

Criticisms of Section 702 are exaggerated.

• “The privacy groups — and I admire their commitment to civil liberties — but they have been suggesting that this is bringing back the Stasi [a historical reference to East German police forcing Germans to spy on each other]…What they are doing is massive exaggerating here, as they have done throughout the whole reauthorization process to try to generate fear.” (Rep. Jim Himes, D-Connecticut.)
• US person data being intercepted in foreign surveillance is an expected and unavoidable part of effective intelligence gathering; the same would be expected when wiretapping a drug dealer domestically, for instance, and incidentally capturing conversations with innocent family members.

MORE SUPPORTIVE OF TIGHTENING SECTION 702 RESTRICTIONS

Section 702 has been frequently abused in the past.

• The FBI conducted a reported 278,000 improper search queries on FISA data over several years prior to the end of 2021.
• Section 702 has a wide history of abuse in surveilling US persons, with examples including the monitoring of Black Lives Matter protestors and Jan 6 2021 participants, investigating 19,000 donors to a congressional campaign, and searches for a sitting Congressman and Senator.
• “Despite what some members would like the public to believe, Section 702 has been abused under presidents from both political parties and it has been used to unlawfully surveil the communications of Americans across the political spectrum.” (Kia Hamadanchy, senior policy counsel at American Civil Liberties Union.)

A warrant should be required for any searches on US persons.

• Warrantless surveillance raises civil liberties and civil rights concerns because federal agents permitted to access data without a warrant are more likely to rely on conscious or unconscious beliefs and political biases.
• The FBI conducted 204,090 “backdoor” searches on US persons without a warrant in 2022; an FBI agent can type a person’s phone number, email address, or name and see any communications the Section 702 tool has from the previous 5 years.

Section 702 authority is too broad and allows for surveillance far beyond what is necessary for national security.

• Section 702 allows the government to target foreign nationals abroad if they are suspected to possess “foreign intelligence information,” a vague term that can include matters unrelated to national security and result in the targeting of innocent individuals such as journalists, activists, or business owners.
• The government should tighten and specify its definition of “foreign intelligence information” and “foreign affairs” in order to limit unnecessary surveillance on US persons and non-US persons with no ties to cybercrime or terrorism.
• Data on US persons communicating with individuals outside the country is stored on servers and routinely accessed by NSA, CIA, and FBI personnel; this data can currently be used to prosecute US persons for crimes even if they’re unrelated to national security.

The House bill unnecessarily expands government surveillance powers under Section 702.

• A provision that expands the definition of “electronic communication service provider” overly broadens the scope of US businesses and persons that might be compelled to assist the government in providing access to communications data or equipment including data centers, landlords, and even cleaning personnel; it would also increase the likelihood that communications involving US persons are “inadvertently” surveilled.
• The proposed vetting of non-US persons provision, which allows intelligence officials to vet foreigners traveling to the US, will harm immigrants and may open the door to surveilling them for improper reasons such as their beliefs.
• The new RISAA provision prohibiting “backdoor searches” for the sole purpose of investigating a crime (instead of foreign intelligence) will not significantly curb abuse since the vast majority of queries are not labeled by the FBI as “evidence-of-a-crime only;” of the 204,090 US person searches conducted by the FBI in 2022, only 2 of them would have been prohibited.
• “The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history.” (Sen. Ron Wyden, D-Oregon.)

From the source

Read more from select primary sources and additional information:

• Full text of the House bill to reauthorize Section 702: Reforming Intelligence and Securing America Act
• Foreign Intelligence Surveillance Court findings on Section 702 uses: Memorandum Opinion And Order (Apr 21 2022)
• Officer of the Director of National Intelligence overview of Section 702: Section 702 Basics
• Officer of the Director of National Intelligence annual report on use of Section 702: Annual Statistical Transparency Report (2023)
• White House report and recommendations on Section 702 reauthorization: President’s Intelligence Advisory Board (PIAB) and Intelligence Oversight Board (IOB) Review of FISA Section 702 and Recommendations for Reauthorization (2023)
• Lawfare overview of how Section 702 searches work: How FBI Querying Under FISA Section 702 Works

Be heard

We want to hear from you! Share your perspective on the government surveillance bill and we may feature it in our socials or future newsletters. Reply to this email in the format of your choosing (text, audio, or video). Below are topic ideas to consider.

• What do you think is the appropriate balance between privacy and security in government surveillance?
• Are you supportive or opposed to warrantless searches on US persons under Section 702?
• What are some arguments or supporting points you appreciate about a viewpoint you disagree with?

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