Today, a discussion draft of major legislation was introduced to protect American citizens whose data is gathered inadvertently under Section 702 of the Foreign Intelligence Surveillance Act (FISA) of 1978. Similar to the USA Freedom Act of 2015, which ended bulk surveillance of American citizens under Section 215 of the 2001 PATRIOT Act, the USA Liberty Act of 2017 overhauls surveillance that is supposed to be limited to targets outside the U.S. but actually affects Americans. Section 702 is set to expire at the end of December, forcing Congress to reassess the program.
“This draft proposes important reforms with bipartisan support, but fails to ensure that information gathered for intelligence purposes is used only for national security,” said Austin Carson, Executive Director of TechFreedom. “We applaud the Committee for proposing an end to ‘about collection’ and adding crucial transparency and reporting requirements. We’ll continue working with the Committee and all stakeholders to strike the right balance. Americans need to know that the national security tools necessary to protect them from foreign adversaries won’t be turned against them.”
This week, TechFreedom joined a diverse coalition of civil liberties organizations and public interest groups urging the House to close this loophole by requiring a warrant based on probable cause for any search of information about U.S. citizens and residents. Today, FISA surveillance is conducted under a warrant issued each year by the FISA court for a list of foreign intelligence targets. But law enforcement can access, and use, Americans’ communications swept up in FISA surveillance with no warrant at all — even though U.S. persons’ communications require constitutional protections not afforded to foreigners. The USA Liberty Act adds a warrant-like ‘probable cause’ requirement before law enforcement can search the database, but also includes a sweeping, vague exception for “foreign intelligence information” and does not stop law enforcement from using that information for criminal prosecutions — a clear violation of the Fourth Amendment.
Key provisions of the USA Liberty Act include “sunsetting” Section 702 so Congress can revisit and reevaluate foreign intelligence surveillance needs, requiring “amicus” representation— alternative viewpoints that will help the Foreign Intelligence Court balance competing interests — and ending the “about collection” — a practice that even the NSA conceded violated Americans’ constitutional rights.
This bipartisan discussion draft was released by Chairman and Ranking Member of the House Judiciary Committee, Bob Goodlatte (R-VA) and John Conyers, Jr. (D-MI), and by the Chairman and Ranking Member of the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, Jim Sensenbrenner (R-WI) and Sheila Jackson Lee (D-TX).
We can be reached for comment at firstname.lastname@example.org. See our work on privacy and surveillance, including:
- Tech Policy Podcast #173: NSA Checks Itself?
- Tech Policy Podcast #161: Spying on the World
- Live Roundtable at Learn Liberty on Section 702 with guests from ACLU, R Street and the Naval Academy
- Our statement on a letter from 30 tech companies urging Section 702 reform
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.