There’s a difference between the right and wrong approach to surveillance reform

It’s a supreme act of cowardice when senators choose to unnecessarily hide behind closed doors to debate issues of national importance.

That cowardice was on full display today as the Senate Intelligence Committee, despite objections, held a closed session vote on a bill to reauthorize warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire at the end of this year. The committee is expected to vote on a bill to extend the law for eight years without any substantial reforms. Amendments likely under consideration amount to little more than window dressing that fail to address its core constitutional concerns.

This is the wrong approach to surveillance reform — and one that should be rejected by the Senate. Fortunately, there is another alternative: the USA RIGHTS Act, a bipartisan bill introduced by Senators Ron Wyden (D-Ore.), Rand Paul (R-Ky.).

{mosads}The USA RIGHTS Act rightly recognizes that no president — Republican or Democratic — should have expansive authority to conduct warrantless surveillance in the U.S. The stakes couldn’t be higher.

With a president who has urged the silencing of critics, labeled individuals as national security threats based merely on their faith, and supported surveillance of immigrant communities, the risks of Section 702 being used to support President Trump’s anti-civil liberties agenda is not far-fetched.

Members of Congress who share these concerns about unchecked spying powers must vote to reform Section 702 so that it does not become a tool for this or future presidents to abuse it for political gain, target opponents, or discriminate.

The ACLU has long opposed this warrantless surveillance and has repeatedly gone to court seeking to put an end to it, including in a new brief filed in the Second Circuit Court of Appeals yesterday. While the USA RIGHTS Act does not fully resolve the concerns with Section 702 — and indeed a full sunset would be preferable — it represents a significant step forward. Here are four main reasons why the ACLU supports the USA RIGHTS Act.

It completely closes the “backdoor search loophole” which the government uses to spy on individuals in the U.S.

By far, the concern that has most animated Congressional debate over Section 702 has been the law’s impact on individuals in the U.S. Section 702 explicitly prohibits the government from “targeting” individuals in the U.S. for surveillance. For years, however, the government has relied on a series of questionable legal arguments to skirt this limit. Specifically, notwithstanding the targeting prohibition, government agencies assert the right to search through Section 702 databases specifically looking for Americans’ information, exploiting what is often called “the backdoor search loophole.” Information obtained from these searches can be used in in criminal prosecutions in cases unrelated to national security, sidestepping important Fourth Amendment protections.

The USA RIGHTS Act would address these concerns by completely closing the backdoor search loophole. Absent an emergency, it would require the government to get a probable cause warrant before searching the Section 702 database for information about an individual in the U.S. 

It ends the government’s illegal practice of collecting communications that are not to or from a surveillance target.

The clear language of Section 702 only permits the government to collect communications “to and from” foreign surveillance targets. However, the government appears to have used legal gymnastics to skirt this restriction. Specifically, the government has asserted the right to collect information not just “to and from” targets, but merely “about” them.

Though the NSA announced that it would temporarily halt “about” collection in April, it has not committed to permanently ending the practice. The USA RIGHTS Act would permanently prohibit “about” collection and halt any other knowing collection of wholly domestic communications.

It makes clear that the government must provide notice to individuals who have Section 702 information used against them.

The existing Section 702 statute requires that notice be provided to individuals when evidence is “obtained or derived” from the authority. Unfortunately, there is ample evidence that the government has not followed the letter or spirit of this provision. Prior to 2013, not one criminal defendant had received notice under Section 702. Since then, notice has only been provided in a total of eight cases — an astonishingly low number given the extent to which the government reportedly relies on the authority. 

The USA RIGHTS Act addresses this deficiency by making clear that the government must provide notice in cases where they would not have had information but for Section 702 surveillance. 

It enhances government transparency and accountability. 

Recent disclosures have made one thing crystal clear: the intelligence agencies are incapable of policing themselves and display a shocking lack of respect to independent overseers. In the last two years alone, these agencies have reneged on transparency promises made to Congress, withheld significant compliance violations from the intelligence courts, and consistently failed to purge and appropriately handle Americans’ information.

While there are no easy solutions to these systemic problems, the USA RIGHTS Act takes significant steps to enhance oversight and transparency by requiring the government to provide an estimate of the number of individuals who have their information collected under Section 702 (or explain why it cannot do so), enhancing the role of outside individuals who can provide expertise to the court, and reforming FISA courts.

Congress must reform Section 702 to bring it in line with the constitution. Passage of the USA RIGHTS Act would be a significant step forward in that effort and members of the public should call their member of Congress and urge them to co-sponsor this bill.

Neema Singh Guliani is a legislative counsel with the American Civil Liberties Union Washington Legislative Office, focusing on surveillance, privacy, and national security issues.