According to the Electronic Frontier Foundation, the U.S. House will vote on whether or not to reauthorize the Foreign Intelligence Surveillance Act (FISA) and to potentially expand both NSA and civil law enforcement agencies’ surveillance powers in the same bill.
FISA Section 702 Loopholes
According to the EFF, multiple legal loopholes exist in the FISA law, section 702, which allows the government to spy on masses of innocent people, both abroad and at home, in the U.S.
For one, the government is able to read Americans’ emails through what the EFF and Senator Ron Wyden, who is a member of the Senate Intelligence Committee, have called “backdoor searches.” The way that works is that the government has a broad interpretation of what a “foreign communication” (encrypted communications are automatically considered foreign, for instance) means, which allows it to then spy on most Americans, using this loophole.
These backdoor searches also require no individual Fourth Amendment-based warrant, as the FISA Court usually authorizes only whole surveillance programs for months at a time against entire classes of people.
Another major loophole of Section 702 of FISA is that the government collects broad information “about” a target. This would essentially allow the NSA to consider millions of innocent Americans as part of terrorism investigations if all they did is read news about terrorists that the NSA was targeting with its surveillance programmes. The “about collection” was so broad and so often abused by the NSA that the FISA Court eventually decided to block the NSA’s requests for more “about” surveillance.
However, recently, bills in the Senate and the House have tried to resurrect and codify these powers to the NSA’s benefit. These new bills, such as the USA Liberty Act or the FISA Amendments Reauthorization Act of 2017, also attempted to expand surveillance powers in other ways. For instance, the bills would codify into law that 17 law enforcement agencies would be able to access the raw mass surveillance data on both foreigners and Americans, without a warrant.
President Obama had largely already given the NSA permission to share this data with all of those other agencies, only days before he left office, but the new bills would make these changes permanent.
EFF Backs “USA Rights Act”
The USA Rights Act—not to be confused with the USA Liberty Act, or the USA Freedom Act, for that matter—is Senator Wyden as well as other senators’ (both Democrat and Republican) attempt to reform and restrict the government’s seemingly ever-expanding surveillance powers.
According to the EFF, this bill would:
- Help close the backdoor search loophole, by requiring warrants for searches of Section 702-collected data that belongs to Americans.
- Codify the end of “about” collection, an invasive type of surveillance that was heavily criticized by the Foreign Intelligence Surveillance Court for privacy violations.
- Sunset in four years, giving Congress another chance to revisit and debate NSA surveillance.
Meanwhile, another House bill based off last year's FISA Amendments Reauthorization Act of 2017 (H.R. 4478) will extend NSA’s mass surveillance to six years, as well as allow the backdoor searches to continue. However, the co-sponsors of the bill have given it a bill code number that's typically given to Senate bills, even though this is a House bill. Nevertheless, the House bill aiming to expand NSA surveillance is called S. 139, and it has nothing to do with an actual Senate bill with the same name.
The House will vote on both bills today. The EFF encourages everyone to call their representatives and tell them to vote yes on the bill restricting NSA surveillance at home (the amendment sponsored by Rep. Justin Amash) and no on the bill expanding the government’s surveillance powers.