FISA Section 702 is about to expire at the end of this month, which has led multiple bills to be introduced in Congress, some of which were meant to restrict NSA’s surveillance powers and some of which seek to expand them.
A recent House bill introduced by Representative Devin Nunes, the Chair of the House Permanent Select Committee on Intelligence, mirrors Senator Richard Burr’s bill introduced last month in the Senate, both aiming to expand the NSA’s powers and the definition of a “foreign target.” The bill was introduced on November 29, and a committee is scheduled to markup the bill today, December 1, which leaves little room for debate on such an important bill.
New Surveillance Targets
The Nunes bill expands the statutory terms “foreign power” and “agent of foreign power” to include a broad set of cyber-related activities. The surveillance could be approved for individuals who don’t actually act on behalf of foreign powers, but could unknowingly be aiding or abetting “international malicious cyber activity.”
It’s not clear if this is the intent of the bill, but the definition seems broad enough that it could probably include developers of privacy and security tools such as the Tor browser or TAILS, for instance, as malicious hackers could be using those tools to hide their tracks.
The bill will expand the definition of foreign targets not just for FISA 702 surveillance, but any kind of intelligence gathering operation done by the U.S. government.
Warrants Will Be Optional
Section 702 surveillance collects Americans’ communications and records in bulk along with those of the foreigners, as the program allows the NSA to tap into internet cables. Other government agencies, including the FBI and CIA, are allowed to search through that database without a warrant, according to the EFF.
The EFF and Senator Wyden, who’s a member of the Senate Intelligence Committee, have called this type of search a “backdoor search,” because it allows the government to spy on any American without a warrant, as the Fourth Amendment of the American Constitution requires.
Nunes’ bill says that “the Federal Bureau of Investigation may apply for an order of the [Foreign Intelligence Surveillance Court]” in order to access the FISA 702 database.
The EFF noted that Constitutional rights are guaranteed and are not optional to the government to follow. The clause in this bill is especially troublesome as there is already plenty of evidence that both the DEA and the NSA have been helping convict people based on evidence obtained through surveillance without letting courts know that this is how the information was obtained, and of course, without any permission or warrant.
“About” Collection Is Back
The FISA Court has begun denying the NSA and FBI requests that allow it to collect “about” information on a target. The “about” collection refers to surveillance on anyone who may even be talking about a target, even if they’ve only heard about the target from a news story. The EFF and other civil organizations believe that this is too broad of a search, similarly to how the NSA’s “three-hop” phone records collection was too broad and largely irrelevant to investigations, but the NSA was collecting all that information anyway.
The NSA stopped doing this type of surveillance when FISA started denying authorization for it, but the NSA now seems to want the powers written into law, presumably to force the Court’s hand to approve future authorizations.
The Nunes bill goes beyond bringing back the “about” collection - it also aims to expand it to include not just people, but also places, buildings, and even data centers. This could give the NSA permission to break into a data center and collect all information stored there, just because someone whose data is in that data center talked about a target online.
House Judiciary Democrats Respond
A group of Democrats from the House Judiciary Committee issued a statement in which it warns that the new bill introduced by Rep. Nunes will allow the government’s mass surveillance operations to directly target Americans:
The HPSCI bill is a dangerous expansion of the government’s ability to spy on United States citizens. It does little to prevent the FBI from using Section 702 against us in court. It does even less to prevent the NSA from engaging in so-called “about” collection—a practice that the FISA court has twice found unconstitutional. Perhaps most frightening, the bill makes a subtle change that would, for the first time, allow the government to aim these surveillance programs directly at Americans. Nobody should find these ‘reforms’ acceptable. Nobody should consider this bill ‘reform’ at all.