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House Introduces Bill to Reauthorize and Reform FISA Section 702

Reports First Amendment Fourth Amendment

USA Liberty Act of 2017, H.R. 3989, 115th Cong. (2017).

On October 6, 2017, Representative Bob Goodlatte (R-VA) and other members of the House Judiciary Committee introduced H. R. 3989 (“the USA Liberty Act of 2017”) to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act for six more years. The bill also makes substantive adjustments to several controversial elements of Section 702.

Section 702 of FISA permits the government to surveil foreigners outside the United States with the compulsory assistance of U.S. communications companies and without the need for a warrant or judicial approval. Edward Snowden’s (in)famous leaks in 2013 revealed the government’s surprisingly broad interpretation of Section 702. In addition to collecting communications to and from a target, the government interpreted the Section to include collecting information about a target in the same manner. The FISA Court halted this practice in 2011, holding that it entailed a high risk of intercepting content that was entirely domestic and irrelevant. While its order was set to expire in April 2018, the USA Liberty Act of 2017 would continue to prohibit the practice by requiring “that the targeting of a person is limited to communications to or from the targeted person.”

The bill would also impose restrictions on “incidentally collected” correspondence (sometimes called “backdoor searches”) from United States persons and would mandate semiannual reports from the Director of National Intelligence and the FBI to increase oversight of data collection. Under the current law, the government may view correspondence sent from U.S. persons to targets without a warrant. Although the bill allows government operatives to query the database for results from U.S. persons, it mandates that they obtain warrants though the Foreign Intelligence Surveillance Court (“FISC”) that show probable cause.

Cybersecurity experts Peter Swire and Dick Clarke argue the bill does not go far enough in protecting privacy rights under the Fourth Amendment. Rather than request a warrant after a query, the government should be required to get a FISC judge to sign off on a search warrant before querying the database. If Congress is unwilling to require a warrant for queries, then the bill should require a FISA order for foreign intelligence investigations alongside a probable cause court order for criminal investigations. The Center for Democracy & Technology also advocates for the end of the backdoor search.

On the other hand, Susan Hennessey and Benjamin Wittes of Lawfare believe that the bill “make[s] the FBI’s job harder for no good reason” and owes its roots to “panicky civil libertarians” and “right-wing conspiracy theories about ‘unmasking’ intelligence.” They call for a clean reauthorization of Section 702 as it currently stands, free from needless checks that handcuff the government’s abilities to gather valuable intelligence. Further, they argue the FBI almost never accesses “incidentally collected” information from U.S. persons as a part of an investigation, and that the current bill represents a solution in search of a problem.

Senator Tom Cotton (R-AR) has introduced a bill making Section 702 permanent without reforms –setting the stage for further legislative struggle over the Section’s future.

Jesse Burbank is a 1L at Harvard Law School.