House Judiciary Chairman Bob Goodlatte (R-VA), Ranking Member John Conyers (D-MI), Rep. Jim Sensenbrenner (R-WI), and Rep. Sheila Jackson Lee (D-TX) unveiled a new bill called the “USA Freedom Act,” which aims to reauthorize and modify the Foreign Intelligence Surveillance Act (FISA). Without the renewal, FISA would expire at the end of this year.
Codifying Mass Surveillance Of Americans
Those who have followed the passing and then usage of mass surveillance-enabling bills such as the Patriot Act and its successor, the USA Freedom Act, may already be suspicious about a bill named the “USA Liberty Act.”
Indeed, although the bill does aim to curtail some illegal NSA activities and abuses that shouldn’t have happened in the first place, it also codifies into law the bulk collection of Americans' data. It also codifies the NSA’s ability to share data with other domestic agencies.
President Obama also expanded some executive rules last year that allowed the NSA to share raw intelligence data without a warrant with 16 other agencies. Because the shared data is raw, Americans’ data can be seen by agents from any of the 17 agencies, without any judicial approval. Such broad access may also put this data at risk from cyber attacks.
It’s not clear if the new USA Liberty Act, which does require a warrant when Americans’ communications content is accessed by the other 16 agencies, including the FBI, overrides those rules. The USA Liberty Act is also much more relaxed when it comes to metadata (phone or email records, etc.), requiring only a supervisor’s approval for access.
What is clear is that until last year, the so-called “incidental” data collected on Americans through foreign intelligence programs was supposed to be minimized and then automatically purged. However, President Obama’s expanded rules now allow 17 agencies to scour through that data before any minimization or purging happens.
Meanwhile, the USA Liberty Act seems to imply that data will be kept long enough that there will be enough time for domestic agencies to get warrants from judges or other type of approvals to obtain it. In other words, the supposed “incidental” collection is starting to seem less incidental and more purposeful.
The agencies have been caught many times with their hands in the proverbial cookie jar of domestic data. However, because these surveillance laws, including the new USA Liberty Act, never mention any criminal sanctions for such abuses, no one has been punished for it.
The NSA and DEA even built a parallel construction program together, where the DEA would get illegal surveillance information in drug cases that it would then use in court, while telling judges it came from other legal requests. The program was eventually terminated due to Edward Snowden’s revelations.
“Backdoor Search” Reform Is Broken
Demand Progress, a civil liberties group, claimed that although on the surface the bill seems to add some important reforms, most of them are surface-deep.
One of the primary issues civil liberties activists, as well as Senator Ron Wyden, have had with FISA section 702 surveillance in the past is that it allowed for “backdoor searches” on Americans. In theory, the NSA should be spying only on foreign communications. However, as always, the devil is in the details.
Until recently, for instance, the NSA would collect any communication of people who would even talk “about” a terror plot or some other national security concern. Therefore, anyone who may be talking to friends or family, or post online about a recent attack seen on the news, may have had their communications collected by the NSA.
The NSA interpreted this type of collection to be “relevant” to its investigations. However, common sense would dictate that this interpretation is quite broad. It may have also been one of primary factors paralyzing the agency’s analysts with too much data.
The FISA Court eventually put an end to this practice, after having previously been accused of rubber-stamping virtually all of the NSA’s requests. The USA Liberty Act now codifies this prohibition to collect communications that are simply “about” targets.
However, Demand Progress still believes that by allowing the NSA to collect data for “foreign intelligence purposes,” this gives the agency too much latitude to define what exactly that would mean and who can be its targets. The civil liberties group feels that the exception would eventually “swallow the rule.”
Other Paper Reforms
Demand Progress thinks that because there’s no strict limit on how accessed data can be used and for how long, this could lead to abuses. Other agencies could be allowed to use Americans’ data in other investigations that have nothing to do with national security.
The civil liberties group also complained that the USA Liberty Act is missing a key provision that requires the government to give notice when it uses FISA section 702 surveillance in prosecutions.
According to one of the co-authors of the Patriot Act, the NSA didn’t interpret the law as it was intended by Congress. Instead, the NSA used secret interpretations of the law to expand its own surveillance capabilities. Demand Progress fears that this could happen once more unless the executive branch is mandated to tell Congress and the public how it’s interpreting the new USA Liberty Act.
FISA will expire on December 31, 2017, unless the USA Liberty Act or some other bill that aims to reauthorize the same programs pass by then. If the USA Liberty Act passes, it would be in place for six years, until September 30, 2023. Many civil liberties organizations believe that unless real reforms are added to the bill, then FISA should be allowed to expire.
The EFF has set up a page to email your Congress representatives, and you can also call their offices directly if you'd like either to see the FISA surveillance law expire or see the implementation of stronger reforms via the USA Liberty Act.