Section 702 Reform: Actions For Thanksgiving Week

Congress is debating whether to renew the law that allows the FBI and other agencies to conduct warrantless searches on Americans’ communications, Title VII of the FISA Amendments Act of 2008. Too much of the approach so far by most legislators has been to try to find the sweet spot of being able to say to the public that they have passed a “reform”, without actually offending the intelligence community by meaningfully limiting the surveillance that is being done.

This week, the ask is as follows, and works for Representatives and for Senators. The fuller explanation is in “Legislative Analysis” below.

– Cosponsor the USA RIGHTS Act
– Oppose the FISA Amendments Reauthorization Act
– Oppose the inclusion of any 702 reauthorization provisions in an end-of-year omnibus spending bill

For the USA Liberty Act, the main action is in the Senate. When you call your Senators, please ask them to:

  • Senators should cosponsor the Senate USA Liberty Act; and
  • Make sure that the language on FBI backdoor searches continues to reflect the Senate bill as introduced, rather than adopting the House language; and
  • Support any amendments that restrict use of 702 information to topics generally covered by the known certificates for it: terrorists, spies, proliferation, nation-state hacking, and other critical infrastructure issues, as the House USA Liberty Act does; and
  • Support any amendments that restrict unmasking in the manner that the House USA Liberty Act does; and
  • Encourage the adoption into the Senate USA Liberty Act of other elements of the excellent USA RIGHTS Act.

Scroll down for detailed legislative analysis and commentary.


Legislative Analysis

Section 702, the most controversial part of Title VII of the FISA Amendments Act (“FAA”) of 2008, is due to sunset December 31, 2017. Unless Congress acts in some way, this legislative authority for the NSA’s mass surveillance programs, including PRISM and UPSTREAM, will expire.

Digital Fourth’s primary position on this is: Good. FAA was a cowardly, retroactive Congressional capitulation to a Bush administration which had been caught conducting unconstitutional and illegal mass surveillance. By rights, the people responsible for authorizing it ought to have been jailed, and the databases arising from it should have been destroyed. Meaningful personal penalties for those involved in these abuses, like with torture, could have made it less likely to happen again. Since Title VII of FAA last came up for reauthorization at the end of 2012, the Snowden revelations have uncovered arrays of new information about how badly the intelligence community is abusing its powers, and how much they have lied to Congress and the public about what they have been doing in the name of “safety.”

However, we recognize that the Trump administration and about one-third of Congress would nevertheless like to see these powers renewed permanently and without reforms, out of desperation to portray themselves as tough on terror. Despite our best efforts, there are nothing near the numbers there should be in Congress willing to see these powers sunset altogether.

The best legislative fix available to Congress, the USA RIGHTS Act, was introduced by Sen. Rand Paul (R-KY) and Sen. Ron Wyden (D-OR) in the Senate, and Rep. Zoe Lofgren (D-CA) and Rep. Ted Poe (R-TX) in the House. It is the only thorough effort to fix the problems with Section 702 warrantless surveillance of Americans. The USA RIGHTS Act would not allow the FBI, or any other government agency, to query the database using search terms relating to a US person, without a warrant. It would protect whistleblowers, end “about” searches, allow more lawsuits to be brought challenging NSA surveillance, give the Privacy and Civil Liberties Oversight Board subpoena power, and shorten the next sunset period to four years. Given that the intelligence agencies and FBI have lied to the courts, to Congress and to us about what they’ve been up to, and given the Trump administration’s penchant for political persecution, USA RIGHTS looks to us, if anything, like a generous accommodation to the overmighty intelligence agencies.

What both House and Senate leadership would probably mostly prefer is an outcome where the Senate Intelligence Committee’s “FISA Amendments Reauthorization Act” (“FARA”) either passes as stand-alone legislation or gets folded into an omnibus spending bill, enabling Congressmembers to get home for Christmas and not come back till the New Year. The problem with this is that FARA is really, really awful. It provides a straightforward roadmap for the NSA to restart “about” collection. It offers an eight-year sunset date for these powers, versus four in the USA RIGHTS Act. The Attorney-General (Jeff Sessions, remember) is given unreviewable authority to allow searches of the NSA database for serious crimes and vaguely defined cybersecurity purposes. This is essentially a bid by a captured oversight body, the Senate Intelligence Committee, and its chairman Richard Burr, to give the intelligence community exactly what it wants; its improvements to reporting requirements by the Attorney-General and the FISC are there purely to be able to claim that “reform” has been accomplished.
Despite – or, more likely, because of – the awfulness of FARA, the prospect of its being folded into an omnibus, must-pass spending bill is a serious one.

Before Sens. Leahy and Lee introduced the Senate USA Liberty Act, it was not clear how it could realistically be avoided. Now, their stronger language on the warrant requirement gives us, as a Fourth Amendment nonprofit, something to fight for that has some chance of passage. We’re therefore encouraging both the USA RIGHTS Act as the best legislative vehicle, and a modified version of the Senate USA Liberty Act as the next-best legislative vehicle. The Senate USA Liberty Act should be modified because (a) it does not protect Tor users, numbering nearly half a million in the US on any given day; because (b) it does not limit the uses of 702 information to the previously established “certificates” for its use; and because (c) it does not require transparency into “unmaskings” ordered by the White House.

Commentary: A Note on Good Faith

Commentators frequently bemoan the decline in America over the last few decades in trust in institutions and in one another. As an organization drawing support from people on the right, on the left, and many places in between, we serve as a rare space where Americans can still work together towards common goals, even when coming from very different positions on political and social issues. We deeply value and cultivate that sense of trust in one another. It’s genuinely important to believe that the vast majority of our fellow Americans come by the beliefs they have no less honestly than we come by our own, and that they honestly believe that their views, if implemented, would make the country a better place. Without that bedrock of mutual trust, we would be able to achieve nothing.

Trust in institutions, however, is a very different and much more difficult thing. In truth, the last fifteen years have given Americans plenty of good reason to distrust their institutions. Our political elites manipulated people’s grief and anger over September 11th to bring us into a highly profitable state of unending war. They crashed the economy, left the people who crashed it unpunished, and made the rest of us pay for their ineptitude. It often seems the case that the two major parties agree with one another most easily when there is a project afoot that will really screw the public. And sadly, the governmental institutions with the highest remaining general levels of trust – the military and the police – also don’t really deserve it. It has now been three generations since the military went to war to “protect our freedoms”; their deployments typically aim at shoring up an empire the world doesn’t particularly want, and from which the Founders would back away in horror. The police shoot too many innocent, disproportionately black Americans, routinely violate people’s rights, and almost never face accountability for doing so. The trust that has been squandered will not return by itself, and will certainly not return while elites flaunt their self-exemption from the increasingly harsh state surveillance and punishments the rest of us are subject to.

When it comes to the laws constraining surveillance by the US government’s many intelligence agencies, the problem of trust becomes especially acute. Intelligence professionals cannot reveal absolutely everything about what they do in real time; some secrecy is inherent to espionage. However, giving them a free hand in what they do leads to growing constraints on our ability to think, speak, move and associate without being monitored by the state’s ever-more-intrusive eyes. We are asked constantly to trust that whatever they are doing is in our interests, and will thwart terrorism; but our only safeguards that this is true are the asseverations of most of the few members of Congress “read into” these programs. We have a right to know what kinds of surveillance are being conducted in our name, but Congressional leaders haven’t exactly been forthcoming about it. In practice, we only have the tools now to evaluate these programs because of what Snowden and his fellow whistleblowers did. We are all, like worshipers in the early days of Protestantism, becoming suddenly much more literate in the ways the government exercises power over us, but we are hardly given a real choice over whether they do surveil us or not. So, the previous situation of blind trust in Congress to keep watch over the spies will no longer do. In reality, Congress seems to mostly have very little grasp of what’s happening, or if Congressmembers do understand it, they keep that knowledge to themselves, out of a sense that actually doing something about it only has political downsides for them.

We must therefore argue against making policy on the basis of an assumption, conscious or unconscious, that either Congress or the intelligence community are operating in good faith. In the legal and regulatory spheres, as opposed to the political, always presuming good faith cripples effectiveness; if we could always presume good faith, no law or regulation would even be needed. The legislators who created Section 702 may possibly have believed that the spies would be constrained by it, to not continue spying on Americans; now, in 2017, that belief is no longer reasonable, if it ever was. We now know the spies wordsmithed their way around 702 and created the mass surveillance programs they wanted anyway, including PRISM and UPSTREAM. Now, we must tackle the challenge of instituting reforms when the agencies being reformed are both highly influential in the process and really, really not working in good faith. The fact that legislation continues to be proposed and supported by leadership that presumes good faith on the part of the intelligence community, suggests a Congress so captured that it cannot be said to be really in charge of the intelligence community at all.

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