As the U.S. Congress is now battling over three bills (a House version and two Senate versions) that aim to re-authorize the Foreign Intelligence Surveillance Act (FISA) Section 702 mass surveillance programs, the Electronic Frontier Foundation (EFF) has asked an appeals court to declare Section 702 surveillance unconstitutional.
FISA 702 Surveillance Programs
At the end of this year, FISA will expire, and with it, the Section 702 mass surveillance programs that have enabled programs such as PRISM, Upstream, Xkeyscore, and more, which collect and analyze much of the data that goes through internet cables in the U.S., both encrypted and unencrypted. However, if the data is encrypted, the government still has to decrypt it somehow. In most cases that’s not possible, unless they’ve also obtained the private keys, either by requesting them from technology companies or stealing them.
As the name implies, FISA is supposed to target only foreigners. However, the U.S. government has slowly but surely started analyzing data of Americans, too, even though it has said that it does its best to minimize such instances. However, as we’ve seen some recent bills such as the USA Liberty Act, the intention of the U.S. government and intelligence agencies seems clear: They would very much like to be able to use the data they’ve obtained through the mass surveillance programs, in court as well as prior to ever reaching a court.
EFF’s Fight Against FISA
The EFF, together with the ACLU, has asked the federal court of appeals in New York to find Section 702 FISA surveillance programs unconstitutional.
The EFF argued that because the FISA programs collect all traffic that goes through U.S. internet cables, the government ends up collecting all of Americans’ data, too. This is essentially an end run around the Fourth Amendment, which is supposed to protect Americans’ right to privacy.
According to the EFF, Section 702 says that the government can collect data when they “target” a person outside of the U.S., but it doesn’t prohibit the agency from collecting associated data of Americans. This associated data is defined in broad terms to the point where, until recently, the NSA would collect data on anyone that was merely talking about a national security threat.
For instance, if the media would talk about a terrorist attack, anyone else who is also talking about that attack could have their data swept up by the NSA. In the NSA’s broad interpretations, this would be “relevant” to their investigations. This type of data collection is called “about” collection, and was only recently stopped by the FISA Court. However, the NSA has since asked for its return.
After this data is collected by the NSA, the FBI would then be allowed to search through it, too, in some of its criminal investigations. The EFF and Senator Wyden have called this a “backdoor search” on Americans, because the FISA collection was always supposed to be about foreigners. However, the NSA has gradually extended its interpretation of the law to include more categories of Americans, too.
USA Liberty Act
Over the span of a few weeks, three bills have been introduced in Congress that promise to “reform” FISA surveillance.
The USA Liberty Act (not to be confused with the USA Freedom Act, which basically replaced the Patriot Act with only small, yet largely ineffective, improvements) was the first FISA reauthorization bill to come from the U.S. House earlier this month.
Despite its misleading name, the USA Liberty Act will essentially codify into law the mass surveillance of Americans. It will give legal permission not just to the NSA, but also the FBI and other intelligence agencies, to scour through American citizens’ data as it goes through U.S. internet cables with only approval from higher-ups being necessary.
The only times when a warrant will actually be necessary will be when the data needs to be used in court. However, it’s not clear whether or not the government needs to obtain the warrant prior to accessing someone’s collected data, or if they can apply the warrant retroactively. If the warrant can be applied retroactively, then the government could essentially fish for a crime, then get a warrant when it already found someone guilty of a crime.
The USA Liberty Act plans to extend the FISA authorization for six years, until 2023. The original bill from 2008 was authorized for only four years, and then it was reauthorized for another five in 2012.
FISA Amendments Reauthorization Act of 2017
Senators Richard Burr (R-NC), who is the ranking member of the Senate Intelligence Committee, as well as Senator Mark Warner (D-VA), another member of the Senate Intelligence Committee, have introduced another bill in the Senate, called the FISA Amendments Reauthorization Act of 2017. The bill has already been approved in secret and without debate in the Intelligence Committee, so now it will move to the Senate floor for a vote.
The FISA Amendments Reauthorization Act of 2017 goes way beyond the original “national security” purpose of this “foreign” intelligence law. It includes clauses that would make it legal for the government to obtain mass surveillance data and then use it in criminal cases that involve:
- Serious bodily injury
- Specified offense against a minor
- Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
- Cybersecurity, including violations of CFAA
- Transnational crime, including transnational narcotics trafficking
- Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)
The bill declares that these types of crimes are “related to national security,” and therefore they won’t have to go through any judicial review. This means the bill is worse than the House version, which at least requires the government to obtain a warrant whenever it plans to use the data in court in a criminal case.
The FISA Amendments Reauthorization Act of 2017 extends FISA’s reauthorization even further, to eight years (until 2025).
USA Rights Act
There’s a second bipartisan Senate bill introduced by Senators Ron Wyden (D-OR), Rand Paul (R-KY), and 11 other senators, called the USA Rights Act, which reauthorizes FISA but also aims to limit the government’s surveillance powers.
The USA Rights Act will permanently end the “about” collection. It also puts an end to the “backdoor searches” on Americans, and it will increase oversight for surveillance programs.
Additionally, it will address an issue that effectively banned almost anyone from suing the NSA over its mass surveillance activities unless it could prove in court that the NSA spied on them, in particular.
The USA Rights Act will also give more power to the independent Privacy and Civil Liberties Oversight Board (PCLOB), allowing it to receive documents from national security whistleblowers and to subpoena individuals without the Attorney General’s permission. The board will also be permitted to expand its review of intelligence agencies’ activities. The bill will additionally create new checks and balances for how new judges are appointed to the FISA Court.
“Congress must not continue to allow our constitutional standard of ‘innocent until proven guilty’ to be twisted into ‘If you have nothing to hide, you have nothing to fear.’ The American people deserve better from their own government than to have their Internet activity swept up in warrantless, unlimited searches that ignore the Fourth Amendment. Our bill institutes major reforms that prove we can still protect our country while respecting our Constitution and upholding fundamental civil liberties,” said Sen. Paul.
The USA Rights Act will extend FISA’s authorization only for four years. The EFF, which supports this bill, said that a shorter time for reauthorization is needed so that the surveillance oversight can become an ongoing discussion.