There are now at least three bills pending in Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA §702). Last week, George Croner presented a summary of the provisions of the USA Liberty Act Of 2017, authored by Representative Bob Goodlatte. This article presents a similar summary for another recently-presented bill, the Uniting and Strengthening America by Reforming and Improving the Government’s High-Tech Surveillance Act of 2017 (USA Rights Act). Mr. Croner concluded that the Goodlatte bill was seriously flawed. I agree, but perhaps for reasons entirely opposed to those of Mr. Croner.

The Uniting and Strengthening America by Reforming and Improving the Government’s High-Tech Surveillance Act of 2017 introduced by U.S. Senators Ron Wyden (D-Ore.), Mark Udall (D-Colo.), Richard Blumenthal (D-Conn.), and Rand Paul (R-Ky) allows reauthorization of §702 with certain reforms. 

Senator Wyden has long been a proponent of increasing civil liberties protections afforded to Americans under both the USA PATRIOT ACT and FISA §702. He famously asked former Director of Nation Security James Clapper whether the National Security Agency collects “any type of data at all on millions or hundreds of millions of Americans.” Director Clapper’s answer, “No sir, not wittingly” was widely condemned as a direct lie under oath, but was explained as being (as Stephen Colbert would have said on Comedy Central) “truthy” and resulted in neither his removal nor prosecution.

With §702 authority to vacuum up vast volumes of telephone and internet communications due to expire on January 1, 2018, and general agreement that “collection” of foreign communications is something we want our Intelligence Community doing, Senator Wyden’s bill reauthorizes FISA §702, but adds important safeguards to protect the Constitutional rights of both United States Citizens and persons in the United States who are entitled to such rights.

The bill provides a few safeguards outside §702. First, the bill prohibits the “bulk collection” of telephone records of Americans, unless it can be established that the subject is in contact with a suspected terrorist or spy. Second, it prohibits bulk collection of Americans’ communications records. Third, the bill prohibits National Security Letters from being used for bulk collection, and requires more public reporting about how the government has used National Security Letters. Because a National Security Letter is a (typically secret) administrative subpoena issued by the government without a judge’s approval, Wyden believes that additional transparency is essential.

With respect to FISA §702, the bill reforms the present law by:

1. Closing the “back door searches” loophole by prohibiting the government from searching through communications collected under 702 to deliberately conduct warrantless searches for the communications of specific Americans. This is known as the “back door searches” loophole because it effectively authorizes intelligence agencies to circumvent the constitutional requirement to get a warrant before deliberately searching for the phone calls or emails of individual Americans. 
2. Prohibiting the government from collecting communications that are “about the target” rather than to or from the target, in non-terrorism investigations. 
3. Prohibiting “reverse targeting,” which is the targeting of a foreigner in order to acquire the communications of an American who is known to be communicating with that foreigner. 
4. Placing stronger statutory limits on the use of unlawfully collected information. The FISC has occasionally imposed restrictions on the government’s use of unlawfully collected information, but this bill imposes stronger and less discretionary restrictions.

Finally, the Wyden bill makes changes to the Foreign Intelligence Surveillance Court by creating an independent Constitutional Advocate to argue against the government in significant cases by declassifying more decisions of the Court and by allowing Constitutional challenges to decisions in federal courts.

Taken together, the reforms proposed by Senator Wyden allow ample surveillance authority to remain under FISA §702, while balancing the essential right of Americans to be free from warrantless search and surveillance. As between Representative Goodlatte’s proposed revisions, which Mr. Croner argues would be burdensome and largely ineffective, and Senator Wyden’s targeted reforms, one should hope that Congress will recognize the value of retaining §702 powers while increasing respect for the rule of law by both the agencies authorized to spy under §702 and all of those protected by our Constitution.

Click here to read George Croner’s analysis of the recently proposed USA Liberty Act of 2017, as well as the proposed FISA Amendments Reauthorization Act of 2017 and USA Rights Act, two other bills addressing this issue.