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FISA Amendments Reauthorization Act Fails To Make 702 Reforms

On Thursday, the House of Representatives will consider S. 139, a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.  This bill fails to accomplish any meaningful reform or provide any significant measure of privacy protections. S. 139 is a deeply flawed bill that ultimately jeopardizes the reauthorization of Section 702 altogether. It is universally opposed by technology companies and by privacy and civil liberties groups across the political spectrum.

When House Republican leadership announced it would take up S. 139, House Judiciary Committee Ranking Member Jerrold Nadler released the following statement in opposition to the bill:

“This so-called ‘reform’ bill was written by the intelligence community, for the intelligence community, which is why it fails to accomplish any meaningful reform to Section 702 or ensure our constitutional right to privacy—unlike the bipartisan and overwhelmingly supported bill that passed the House Judiciary Committee.

“The new warrant requirement in this bill, such as it is, is a fig leaf for reform and fails to address the vast majority of searches of 702 information—and we know this because the FBI admitted as much to us earlier today. 

“I, along with the many Members from both sides of the aisle who wanted real reform to Section 702, will oppose S. 139, which is a warmed-over version of a bill that has already been panned by companies, as well as the privacy and civil liberties community.  I urge my colleagues to instead support amendments to this bill that would achieve reasonable, meaningful reforms.”

Here’s what leading organizations have to say:

Electronic Freedom Foundation: “Like the earlier bills written by the House Permanent Select Committee on Intelligence, the new proposal does not protect the communications of Americans from these warrantless searches. While we are pleased that the proposal being considered does not contain an “optional warrant requirement,” the new warrant requirement still fails to address the vast majority of 702 searches. The new provision only requires a warrant for a full-blown, predicated criminal investigation, and by the FBI’s own admission, will rarely be used.”

Center for American Progress Action Fund: “S. 139, the FISA Amendments Reauthorization Act of 2017, does not contain the necessary safeguards.  Rather, it would likely provide the government a powerful tool for political spying on Americans.  Recent events make clear that there is a real danger that government surveillance authorities will be used to target political opponents and groups based on their religion, ethnicity or race.  And there is reason to be concerned that section 702 provides an easy means of political spying with little possibility of discovery.” 

Brennan Center for Justice: “[t]he bill permits warrantless searches of Americans’ communications during “assessments” — i.e., investigations that are at an earlier stage. Because the government could still search the 702 data without a warrant at the early stages of its investigations, the FBI acknowledged to lawmakers that the bill’s warrant requirement would rarely apply in practice.”

ACLU: “It leaves the door wide open to abusive surveillance practices that allow the government to search the intimate emails, text messages, and other sensitive data of Americans without a warrant of any kind. This could easily permit Section 702 to be used as a tool to improperly target minorities, government critics, and marginalized communities.”

Open Technology Institute: “The bill could be read to permit unintentional ‘abouts’ collection, and, if ‘abouts’ collection is reauthorized by the Court, to permit the collection of communications that merely reference targets, but do not contain selectors (ex. email addresses and phone numbers) of surveillance targets under Section 702. This would represent a drastic expansion of the most concerning form of Section 702 surveillance.

Github: “We urge you to stand up for the constitutional rights of your constituents and reject any proposal that does not ensure our communications ... is safe from warrantless surveillance.”

Aspiration Tech, Electronic Frontier Foundation, Freedom of the Press Foundation, Internet Archive: “Section 702, written expressly to allow surveillance of non-U.S. persons not living in the United States, is now used by the NSA to justify its collection of Americans’ emails, chat logs and browser history. ... Please, require any bill that extends Section 702 to include warrant requirements on American communications.”


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