Coauthored with Sean Vitka of Demand Progress. This op-ed was originally published at The Hill on November 27, 2017.
Congress doesn’t have much time left on the legislative calendar for the year, but there’s still a lot on the agenda to get across the finish line. In the few remaining days, Republicans hope to pass a tax reform bill and either another short-term continuing resolution or an omnibus to fund the government.
Another item on the agenda is the reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), including the controversial Section 702.
The current authorization for Section 702 expires on December 31, and it’s the first time Congress has faced this reauthorization since Edward Snowden’s earth-shattering disclosures about the National Security Agency’s mass surveillance apparatus. Committees in the Senate and House have competing proposals to reauthorize the program. But with the clock running out, Congress once again appears to be poised to jam through reauthorization.
Passed in 1978, FISA allows federal intelligence agencies to collect the electronic communications of foreign persons to surveil for certain illicit activities, including terrorism. But not all of the electronic communications collected by the National Security Agency (NSA) are those of foreign persons.
According to a 2014 Washington Post report, 90 percent of account holders whose communications were collected were not the intended targets. “Many of them were Americans,” the Post explained. “Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents.”
Civil libertarians have urged Congress to take this reauthorization as an opportunity to implement meaningful reforms to shield innocent Americans from mass surveillance while ensuring that federal intelligence agencies have the tools they need to protect the United States from foreign threats. Some in Congress, however, seem committed to running roughshod over the Fourth Amendment.
The Senate Select Committee on Intelligence has marked up the FISA Amendments Reauthorization Act, S. 2010. The bill, sponsored by Chairman Richard Burr (R-N.C.) is actually worse than existing law. It explicitly allows the attorney general to use information collected under Section 702 for domestic crimes that have nothing to do with national security and forbids judicial review of that decision.
Meanwhile, the House Judiciary Committee has marked up the USA Liberty Act, which, despite or because of painstaking deliberations, does not sufficiently protect innocent Americans from surveillance. The House version of the USA Liberty Act, for instance, has a weak warrant requirement, which would allow the Federal Bureau of Investigation (FBI) to conduct backdoor searches of electronic communications collected by the NSA for domestic, non-terrorism investigations. Additionally, the proposed end of “about” collection, in which the government collects information that is neither to nor from a target, would sunset after six years.
The FISA Court forced the end of “about” collection earlier this year, finding the practice to be “a very serious Fourth Amendment issue.” The court also concluded that the NSA’s failure to disclose information represented “an institutional ‘lack of candor.’” These are just two of many red flags the secret judicial body has raised over intelligence agencies’ collection practices.
There are alternatives. The Senate companion to the USA Liberty Act, introduced by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), improves upon the version marked up by the House Judiciary Committee. In particular, the improvements include a far stronger prohibition on searching for Americans’ information without a warrant and permanently ending “about” collection.
Separately, Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) have introduced the USA RIGHTS Act. The bill would stop “backdoor searches” of Americans’ information, permanently end “about” collection, fix disturbing problems faced by defendants against whom the government uses Section 702 information, forbid the knowing collection of entirely domestic communications, and institute other important reforms. The USA RIGHTS Act is by far the strongest reform bill on the table, and all who truly care about their civil liberties should support it.
But despite these tremendous efforts by many in Congress, the ink on the Bill of Rights, which is so crucial to the American experiment, is fading. With no clear path to the floor for any of these bills, the chance that Section 702 reauthorization with no or minimal reforms is included in an omnibus has grown significantly. But a spending bill is no place for an issue that literally affects the fundamental rights of every American. It is no place for substantive debate over the very real privacy and security issues facing America.
The leadership in the House and the Senate must give those in both parties the opportunity to offer amendments to reform FISA. These ideas have broad bipartisan support, and the closure of the backdoor search loophole itself has passed the House of Representatives twice. To jam Section 702 reauthorization into an omnibus or to otherwise prevent debate on the floor would not only diminish Americans’ privacy, it would diminish our voice.
The public deserves a chance to fight for its Fourth Amendment right to privacy and to know the names of those, Republican and Democrat alike, who are actively working to diminish this fundamental liberty.
Jason Pye is the vice president of legislative affairs for FreedomWorks. Sean Vitka is counsel for Demand Progress.