Uncle Sam snooping on US folks? Not without a warrant, lawmakers agree

Proposed Section 702 overhaul bill rolls in as expiration date looms

The White House is already trying to sink a bipartisan law bill introduced on Tuesday that would rein in the Feds' powers to snoop on US persons without a warrant under the infamous FISA Section 702.

This controversial surveillance tool is set to expire at the end of the year unless Congress reauthorizes it. This is causing panic in law enforcement agencies, who see a source of potentially valuable intelligence becoming harder to use.

Today Democrats and Republicans in both the Senate and House of Representatives said they are willing to renew Section 702, but with some key protections added to prevent well-documented abuses of the spying powers – primarily the inclusion of warrant requirements for surveilling US persons' communications, location and vehicle data, web browsing history, and search records.

"Privacy isn't just a suggestion. It is, in fact, a constitutional guarantee," declared Senator Mike Lee (R-UT), during a press conference to unveil the Government Surveillance Reform Act.  

"The clock's ticking on 702. It's set to expire, and it's time for a trade," Lee continued. "We will vote to reauthorize but only with rules that Uncle Sam get a warrant for entering our digital domains."

Privacy isn't just a suggestion. It is, in fact, a constitutional guarantee

The 206-page reform act [PDF], co-sponsored by 21 lawmakers from both parties, would reauthorize the controversial amendment to the Foreign Intelligence Surveillance Act for four years. 

It also includes a slew of reforms to government surveillance authorities beyond Section 702 – including requiring warrants for government purchases of private information from data brokers. The proposal has been endorsed by dozens of civil society organizations, including the Americans Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and Electronic Privacy Information Center (EPIC)

Banning 'backdoor searches'

FISA Section 702 is supposed to permit the federal government to warrantlessly spy on communications belonging to foreigners outside of the United States, theoretically to prevent criminal and terrorist acts. 

However, that communication dragnet sometimes vacuums up phone calls, texts, and emails of US persons, all of which are stored in massive databases the FBI, CIA and NSA can trawl though without a warrant.

US law enforcement has been touting the supposedly invaluable cyber threat intel gleaned from 702. According to FBI director Christopher Wray, the Feds' favorite surveillance tool has prevented ransomware infections, helped agents confirm who was behind the Colonial Pipeline cyber attack, and even blocked an attempt by Chinese spies to compromise an unnamed US transportation hub.

Of course, it has also been abused hundreds of thousands of times by the FBI to conduct warrantless surveillance on US folks – including protesters, campaign donors, and elected officials.

Those pushing for 702 reform call these "backdoor searches," in which foreigners are targeted as a pretext for spying on the American citizens and green card holders with whom they are communicating. Critics of the FISA powers want these kinds of warrantless searches banned, and the bipartisan proposal aims to end this use of Section 702.

Warrants? That's a 'red line'

"Today, America's intelligence agencies hoover large volumes of electronic communications, and they claim they have a right to search individual Americans' texts and emails without getting a warrant," said Senator Ron Wyden (D-OR), who promised to introduce surveillance reform legislation back in July. "They don't have that right. And it's time for the law to reflect that."

The warrant requirement is also a "red line" for the Biden Administration, which has urged Congress to reauthorize Section 702 "without new and operationally damaging restrictions," and in a separate press briefing on Tuesday denounced the surveillance reform bill.

"One of those red lines is the operationally unworkable and fundamentally inept requirement to go to a court before accessing already lawfully collected information," a senior administration official told reporters.

"It remains a red line, not to have to go to a court and lose the operational window to stop an assassination attempt, to prevent ransomware, to stop senior government officials' email accounts from being hacked." 

The bill does allow some exceptions to the warrant requirement for 702 searches. For example, defensive cyber security purposes or other emergency situations – such as locating and rescuing hostages overseas – that pose an "imminent threat of death or serious bodily harm," would be allowed without all that cumbersome paperwork. Basically, this covers any instance where there isn't sufficient time to get a warrant in advance. 

Lawmakers also want the intelligence community to destroy 702 data collected on US persons after five years – unless the attorney general deems it necessary for court proceedings or relevant to a specific threat.

Additionally, the hefty legislation would prohibit the warrantless collection of business records, beef up the role of FISA Court review, prohibit so-called "about" collections (which allow searching through internet traffic to collect not only communications to or from an intel target, but also those that mention an identifier used by that target), and limit surveillance activities currently permitted under Executive Order 12333.

Given the White House pushback this draft legislation is likely to cause a political, and privacy, storm. There is no guarantee it will pass. ®

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