The battle over a controversial US government spying program has intensified – with a fourth piece of legislation tackling the surveillance introduced to Congress on Friday.
Somewhat confusingly, the latest proposed law – put forward by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) to the US Senate – is understood to be twinned with the USA Liberty Act that is making its way through the House: the Senate version of the bill is diametrically opposed to its House counterpart.
In broad terms, the fight over section 702 of America's Foreign Intelligence Surveillance Act (FISA) comes down to a single issue: should the powers within it that allow the intelligence services to intercept and store communications on foreign intelligence targets be extended to cover US citizens?
For years, the FBI has been secretly using information gathered by the NSA in a giant section 702 database to search for records on Americans at home. That goes against the explicit wording of the law, and it almost certainly unconstitutional. The clue is in the name of the act: foreign intelligence. The database is not supposed to contain information on US citizens.
However, through a series of highly questionable legal assertions and interpretations, many of which were developed in secret by the intelligence agencies and were exposed in part by Edward Snowden, the FBI in particular has continued to rummage through the database and the NSA has continued to gather as much data as it possibly can on both foreign targets and US citizens.
Section 702 has to be officially reauthorized by Congress by the end of the year. And that has led to two parallel efforts: one pushed and supported by the NSA and FBI that would effectively write into the law the secret interpretations and allow things to continue on as currently; and one pushed and supported by privacy advocates and, to a lesser degree, technology companies, which would actively close some of those loopholes.
The USA Liberty Act before the House (H.R.3989) would grant the NSA and FBI the legal justification to continue its current spy program. The new USA Liberty Act before the Senate (S.2158) would bring a stop to the most egregious parts of it. For those not in the know, typically a bill has to clear both the House and the Senate, and any differences between the two versions reconciled, before it is signed into law by the president.
Meanwhile, there is the USA Rights Act in the Senate (S.1997), which shuts down the loopholes. And the FISA Amendments Reauthorization Act of 2017 (S.2010), also in the Senate, that would actually expand surveillance and not close any of the holes.
There are fundamentally two key elements at play here: the use of warrants, and the use of "backdoor searches."
On warrants, the question is whether the FBI should be required to get a warrant – ie, demonstrate probable cause to a judge – before gathering and searching for surveillance records on a US citizen.
Today, the Feds and NSA claim that because the section 702 database already exists, a search (or "query" as they decide to call it, for legal reasons) of that info silo means that there is no new information being gathered and so Fourth Amendment protections on unreasonable searches do not apply.
That argument is almost certainly – to use the technical legal jargon – bullshit. And lawmakers in both halves of Congress know it. But some are willing to ignore the Constitution and allow the spying program to continue by simply ignoring the topic and writing new law that greatly reduces the likelihood that the issue will ever reach the courts. In other words, willful and active blindness to its illegality.
On the other side, lawmakers are writing legal text that would require the FBI to obtain a warrant before it gathers information on US citizens.
The issue of "backdoor searches" is closely related to that and a third issue of "about" collection – where the NSA scoops up the communications of anyone referred to by a foreign intelligence target, including US citizens – and then searches that vast database retroactively for information on individuals.
The about collection is also almost certainly illegal. And the NSA voluntarily agreed to stop it following an outcry. But the intelligence services want that power back, and so some of the legislation being put forward effectively grants them a legal pathway to bring it back. Whereas the legislation on the other side would explicitly state that such an approach is illegal.
Ok, why again?
Why today's fourth bill?
It looks like an effort to find a middle ground that can get both sides of Congress on board and achieve the key critical reform of requiring a warrant.
The American Civil Liberties Union (ACLU) has given its backing to this new version of the USA Liberty Act, presumably on pragmatic grounds: an imperfect law being better than a dangerous one.
"While this bill does not address all the constitutional concerns with Section 702," noted the ACLU's legislative counsel, Neema Singh Guliani. "It represents an important step forward from the dismal status quo."
What are the chances of this version being the one that passes into law? Relatively high: Congress has to green-light something before the end of the year or the entire snooping program will grind to a halt.
With some lawmakers simply refusing to support any bill that actively ignores the Constitution, and certainly one that allows a foreign spying system to be turned into domestic surveillance, a political compromise is needed to move forward. This latest bill hopes to be that compromise.
Meanwhile, Senator Ron Wyden (D-OR) in particular will keep pushing his bill that pulls out all the nasties from current law; and the NSA and the Feds will keep pressuring lawmakers behind the scenes to get their version adopted. With six weeks to go, it is a high-stakes game with critical implications for all Americans. ®