TWO SURVEILLANCE BILLS are barreling their way through the US House of Representatives this week. Both claim to achieve roughly the same goal: Enact sweeping reforms and save a dying surveillance program beleaguered by “
persistent and widespread” abuse.
Under this program, Section 702, the US government collects hundreds of millions of phone calls, emails, and text messages each year. An inestimable chunk belongs to American citizens, permanent residents, and others in the United States neither suspected nor accused of any crime.
While both bills would extend the program’s life, only one of them can credibly lay claim to the title of reform. Legislation introduced last week by Representative Andy Biggs in the House Judiciary Committee would require the Federal Bureau of Investigation (FBI) to obtain warrants before accessing the communications of Americans collected under Section 702. The second bill, introduced by the House Intelligence Committee, contains no equivalent protection.
The House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act (PLEWSA, unfortunately) secures a glaring loophole in US law that helps police and intelligence agencies buy their way around the Fourth Amendment by paying US companies for information that they’d otherwise demand a warrant to disclose. The House Intelligence Committee’s bill—the FISA Reform and Reauthorization Act, or FRRA—does nothing to address this privacy threat.
What the FRRA does appear to do, despite its name, is explode the number of companies the US government may compel to cooperate with wiretaps under Section 702. That was the
assessment on Friday of Marc Zwillinger, amicus curiae to the Foreign Intelligence Surveillance Court of Review (FISCR). “These changes would vastly widen the scope of businesses, entities, and their affiliates who are eligible to be compelled to assist 702 surveillance,” Zwillinger wrote in an article with Steve Lane, a former Justice Department (DOJ) attorney.
Plus, it's been
blatantly abused by the FBI to spy on American protesters and an
unnamed US senator, among other elected officials.
Section 702 will expire at the end of the year unless it's renewed by US lawmakers.
A day after the Judiciary Committee advanced its proposal, on Thursday the House Intelligence Committee unanimously passed the FISA Reform and Reauthorization Act of 2023 (
HR 6611).
This proposal also renews Section 702 — but notably without a strict warrant requirement, similar to
another bill to reauthorize Section 702 in the US Senate.
Instead, it seeks to end the FBI's abuse of the controversial snooping tool by limiting its powers to conduct Section 702 queries on people in the US. Specifically, it prohibits the FBI from conducting "evidence of a crime only" queries of information, and greatly reduces the number of agents authorized to approve legal queries.
It also requires the FBI to notify "appropriate congressional leadership" anytime it conducts some of these queries, including those that involve US elected officials and political candidates.
US Representative Mike Turner (R-OH), who chairs the House Intel Committee, blasted the rival Judiciary Committee bill in his opening remarks.
"Our bill is targeted to FBI abuses and I would have thought their bill would have also," Turner
said. "However, their bill spends more time expanding the constitutional rights of foreigners who travel in and out of the US, it creates civil liability for telecommunications companies that work with our intelligence community voluntarily, and curiously it provides immunity from prosecution, for some horrific crimes if they are discovered under 702 foreign intelligence collection."
These crimes, according to Turner, include "child pornography, human trafficking, murder and even money laundering."
Both bills are expected to be voted on by the full House of Representatives as early as next week.
Guess which bill privacy advocates like best?
While we'd assume that the
FBI prefers the House Intelligence Committee's plan to reform Section 702 of the two options approaching a House floor vote, civil liberties, and digital privacy advocates aren't fans.
Greg Nojeim, director of the Center for Democracy and Technology's (CDT) Security and Surveillance Project, called HR 6611 a "Trojan Horse" and warned it would actually expand surveillance powers.
"This Trojan Horse would take FISA 702 orders beyond the realm of communication services (like email and messaging providers) and pull in anyone who could access equipment on which communications might be sent or stored," Nojeim
said on Friday.
"This could include data centers that merely rent out computer space, hotels and Airbnb owners, and even the local library or coffee shop. Including this provision would seriously impact American businesses far outside the communications and tech sector."
Two days before,
CDT applauded the House Judiciary Committee vote to advance HR 6570.
The ACLU also supports the Judiciary Committee's proposal.
"With so much of our lives taking place online, it's more important than ever that we have the freedom to communicate without fear of government surveillance," said Kia Hamadanchy, senior policy counsel at ACLU, in a
statement.
"This bipartisan bill is Congress's best chance to ensure that Americans' Fourth Amendment rights against unlawful search and seizures are actually protected and to finally hold the government accountable for its constant abuse of Section 702," Hamadanchy continued.
And for those keeping a running tally: There's also the much broader
Government Surveillance Reform Act that seeks to reform Section 702 introduced in both the House and the Senate last month, although that proposal — which also includes a warrant requirement for US persons queries — is still awaiting committee votes in both chambers. ®
