What’s Good and What’s Missing in the 702 FISA Reform Bill

My colleague Pat Eddington has already taken a first pass at the newly unveiled legislation aimed at reforming Section 702, the controversial foreign intelligence surveillance authority that empowers warrantless surveillance of foreigners outside the United States. While Pat focused primarily on the defects of the bill, I’d like to start by briefly surveying what I think it gets right, and then note a few other elements I was disappointed not to see included.

Probably the two most salient features of the “USA Liberty Act” for civil libertarians are that it partially closes the so-called “backdoor search loophole” in 702, and that it codifies the recent end of Upstream “about” collection. For those not steeped in electronic surveillance law, both of those will require a bit of explanation.

The “backdoor search loophole” is explained well and in some detail here by the Brennan Center’s Liza Goitein, but here’s the essence of it: Section 702 permits the warrantless targeting of foreign persons located outside the United States, subject to broad procedures for selecting targets and “minimizing” the information obtained. With more than 100,000 persons targeted for surveillance annually, the scope of communications collection under this authority is, as one might expect, enormous, and includes messages the targeted individuals exchange with American citizens. This provides a roundabout mechanism for obtaining the communications of Americans, which would normally require a particularized Fourth Amendment search warrant based upon establishing probable cause before a judge: That vast database of warrantlessly collected communications can now be queried using search terms associated with Americans, and their communications with foreign targets obtained. We know that the CIA and NSA query the 702 database for terms (such as e-mail addresses) linked to Americans thousands of times each year – and that the FBI does so even more frequently, though unlike their bretheren agencies, they have not provided any estimate of how often. This sets up a sort of constitutional shell game, where an authority sold as a counterterrorism and intelligence tool targeting foreigners with no Fourth Amendment rights can ultimately be used by ordinary criminal investigators to sift through the emails of citizens.

The Liberty Act addresses that concern in part by requiring a warrant to access the contents of a U.S. person’s communication that was found by querying a search term linked to an American – again, an e-mail address being the simplest case. This would, then, limit the ability of criminal investigators at the FBI to turn to 702 as a way of evading the need to establish probable cause for surveillance of their domestic targets. I say it addresses the issue only “in part” for two reasons.

First, the warrant requirement applies only to queries conducted for the purpose of obtaining evidence of a crime; warrantless queries on US…

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