EFFecting Digital Freedom

by David Ruiz

NSA Spying Is Up for Re-Election

NSA spying is broad.  NSA spying is massive.  NSA spying, at times, is unconstitutional, unmitigated, invasive.

And in very short time, a controversial NSA spying tool is up for re-election.  Kind of.

As I write this, Congress is debating multiple legislative options to extend NSA surveillance.  But by the time you read this, that debate could be over.  We do not know which path Congress will have gone down by then, if any, but it's important you learn about one of them.

On December 31, 2017, one of the government's most powerful surveillance tools is scheduled to expire.  It's called Section 702 of the FISA Amendments Act, and it is the law the NSA uses to justify the incidental collection of American communications when conducting surveillance on non-U.S. persons not located in the United States.  You read that right - the NSA uses a law intended for foreign intelligence surveillance to legally authorize the predictable collection of non-foreign intelligence, too.

Given this deadline - and the potential dismantling of a large part of the NSA's spying apparatus - several bills to reauthorize and reform Section 702 have been introduced in the House of Representatives and Senate.  The bills vary in protections and procedures.  Some bills propose stronger oversight.  A few bills guarantee the end of an especially invasive type of NSA surveillance.  One bill completely overhauls how the government accesses American communications collected under Section 702, enabling appropriate safeguards and warrant requirements.

And one bill does none of that.

Worse, it's the one bill that, currently, has advanced further than its counterparts, with a strong chance of being voted on, or included in separate legislation.  It's a bill that EFF is doing everything to stop.

The FISA Amendments Reauthorization Act of 2017 was introduced in the Senate in late October by Senator Richard Burr (R-NC), the Chairman of the Senate Select Committee on Intelligence.

The Burr bill would use the vote on Section 702 as an opportunity to enshrine the NSA's current surveillance powers.  The bill squanders the current moment for meaningful reform and instead pushes civil liberties backwards.  It is a gift to the intelligence community, restricting surveillance reforms, not surveillance itself.

For starters, the Burr bill has the longest expiration date compared to its Section 702 reauthorization bill competitors.  If passed, it will be scheduled to sunset after eight years.

The Burr bill also lacks strong reforms for how intelligence agencies - like the FBI and CIA - access Section 702-collected data.  As it stands, those agencies, and their agents, can search Section 702-collected data - even when it belongs to a U.S. Person - without first obtaining a warrant.  These searches are called "backdoor" searches because they avoid the warrant requirement guaranteed to U.S. persons under the Fourth Amendment.

The Burr bill does nothing to close the backdoor search loophole.  It is the only bill so far to entirely neglect the issue.

The Burr bill also provides guidance on restarting "about" collection, that is, NSA collection of communications that are neither "to" nor "from" a target, but merely contain certain information "about" a target.  The Foreign Intelligence Surveillance Court ruled that this invasive NSA data-collection practice was unconstitutional without additional post-collection use restrictions.

The NSA ended this practice in 2017.  Changes like these do not come often.

In the four and a half years since former defense contractor Edward Snowden exposed the vast capabilities of the U.S. government's surveillance regime, Americans have filled the streets to protest, Senators have grilled intelligence directors for answers, judges have questioned the scope of foreign and domestic data collection, and EFF has continued to represent multiple plaintiffs who allege their constitutional rights are infringed through Section 702 surveillance.

Through it all, unconstitutional NSA surveillance continues.

The scheduled expiration of Section 702 is an opportunity for real reform.

The Burr bill is currently snaking into the cracks of our legislative calendar.  In the last weeks of 2017, Congress is required to vote on several spending, debt, and disaster relief packages.  There is a possibility that the Burr bill could be attached to such must-pass legislation.  It's a possibility that, according to a report by The Hill, Senator Burr himself has called "likely."

Your senators and representatives could vote on how to reauthorize and reform NSA surveillance, and they could do it by avoiding a stand-alone vote on the issue itself.

We can't let that happen.  We hope that, by the time you read this, we will have helped stop this bill.  The Burr bill is unacceptable, by itself or attached to separate legislation.

For more information on Section 702, visit www.eff.org/702-spying.