Bipartisan Surveillance Legislation Draft Kicks Off Debate
Legislation to revise communications surveillance laws will be officially offered Friday, House Judiciary Committee leaders said at a news conference Thursday. Chairman Bob Goodlatte, R-Va., said he’s confident a bill can be passed before authority expires Dec. 31. A discussion draft released Wednesday (see 1710040066) attempts to strike a balance between providing law enforcement tools to target criminal activity and the need to protect civil liberties, lawmakers said. The White House will continue to seek a clean reauthorization with no sunset, said a National Security Council spokesman.
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Pushback began in earnest earlier this week. Groups including the American Civil Liberties Union, Free Press Action Fund, NAACP, R Street Institute and TechFreedom wrote House Judiciary members to tighten loopholes that would allow “backdoor searches.”
“The committee has been hard at work” revising Foreign Intelligence Surveillance Act Section 702 authority, an important national security tool that has been used on “multiple occasions to detect and prevent horrific terrorist plots,” Goodlatte said. The existing law lets government target communications of foreigners outside the U.S. The program “can and does” collect information about U.S. residents when they communicate with people outside the country, Goodlatte said, which is why privacy safeguards are essential.
The bill is a “working document,” said ranking member John Conyers, D-Mich., but it’s possible to bring Section 702 authority “better in line with our sense of privacy and rule process.” He said the bill needs additional change “if we are to convince a critical mass of our colleagues that Section 702 should be reauthorized.” He expressed confidence the final product will contain “substantive reforms that have a realistic chance of becoming law.”
Civil liberties groups gave conditional praise, saying more needs to be done to protect privacy. The draft would codify NSA's prohibition against “about” communications, which allowed the government to collect some domestic communications without a warrant during investigations of non-U.S. residents. Congress ended bulk collection of metadata in June 2015 with the USA Freedom Act (see 1506030039), which allowed the FBI to gather business records in terrorism and espionage investigations but curtailed mass data collections.
The bill would renew Section 702 authority for six years, with expiration Sept. 30, 2023, and would make improvements to the functioning of the Privacy and Civil Liberties Oversight Board by permitting staff hires even if the board lacks members. The bill would extend whistleblower protections to contract employees hired by the intelligence community. The measure would require NSA and the attorney general to sign an affidavit saying communications found not to contain foreign intelligence information must be purged.
Criminal defense lawyers said the revisions don’t solve the basic problem of protecting against unauthorized searches without notice, to ensure that those accused in criminal cases know the source of evidence being used against them. Without significant change to bring the program in line with the Constitution, Congress should allow this authority to expire, said National Association of Criminal Defense Lawyers President Rick Jones in a statement.
The ACLU urged changes to tighten warrantless surveillance, to curtail the threat of expansive government spying without probable cause. The “reforms do not go far enough,” said a statement from Neema Singh Guliani, ACLU legislative counsel, because intelligence agencies still could search emails, text messages and phone calls for information about people in the U.S. without a probable cause warrant. “Those worried that current or future presidents will use Section 702 to spy on political opponents” should be concerned, she said.
TechFreedom and New America criticized the bill for not ensuring information gathered for intelligence purposes is used only for national security. “Americans need to know that the national security tools necessary to protect them from foreign adversaries won’t be turned against them,” said TechFreedom Executive Director Austin Carson.