Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire at the end of the year and several lawmakers are scrambling to have it embedded permanently or at the very least save it.
702 was created to allow federal intelligence agencies to gather data on foreigners suspected of crimes. It does, however, have the side effect of gathering intel on law-abiding Americans.
Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, offered The Daily Caller News Foundation one telling example. He says imagine a hypothetical email address like “Mahmoud@gmail.com” in which it doesn’t explicitly show if Mahmoud, who may be conversing with nefarious Yemeni nationals for example, is an American or not.
“Section 702 is an effective program that can’t really work if we try to exclude American’s communications,” said Baker, adding that the “‘unmasking’ provisions could be tightened up” and “they were effectively loosened as part of the sharing imperative arising from 9/11.”
“702 has turned out to be one of the most valuable programs that the intelligence community [IC] has for terrorism and other reasons, and I don’t hear anyone denying that,” says Baker.
The bill, according to Neema Singh Guliani, the legislative counsel for the American Civil Liberties Union (ACLU), is not perfect, but “represents a significant step forward” since it refines some of the extensive liberties agencies have allegedly been taking with their surveillance practices.
“The USA RIGHTS Act offers government surveillance reform that Americans need and constitutionally should have,” says Michelle Richardson, deputy director of the Freedom, Security and Technology project for the Center for Democracy & Technology (CDT), another tech and privacy-focused nonprofit. “Most importantly, it would close the backdoor loophole in Section 702 that allows the government to search the mass troves of data collected through the program for the private communications of Americans without obtaining a warrant. The law was clearly never intended for this egregious use, and the USA RIGHTS Act finally makes that clear.”
“We built a whole set of institutions where almost all of the professional rewards are for finding problems in the intelligence community,” Baker explains, before listing off a number of examples. “There’s a general counsel at the National Security Agency who thinks his job is to ride herd on improper uses of the capabilities of the department; they created a technical compliance arm to make sure that their technology actually implemented the policies that they were announcing; there’s an inspector general who’s there to look for abuses; there’s a chief privacy and civil liberties officer who’s job is to investigate reports of abuses. That’s just inside the agency.”
Arthur Rizer, national security and justice policy director, who has extensive military and intelligence experience, says he never saw anyone “twiddling their fingers together thinking of ways to violate the rights of the citizenry. These people dedicate their profession to upholding the law.”
He says the question should not be specifically centered around NSA’s conduct, but rather what the law should be.
“I strongly support a warrant requirement for criminal investigations — national security does not trump the 4th Amendment of our Constitution,” says Rizer, before adding that requiring a warrant for “pure national security investigations” is different and a difficult question to answer. He says that perhaps if “national security” was more narrowly defined, then surveillance could be limited to only what is the most necessary.
There is also a companion bill in the House with Republican Reps. Justin Amash of Michigan and Thomas Massie of Kentucky and Democratic Rep. Ted Lieu of California signing on.
And the legislative battle that is heating up isn’t just centered around two main pieces of legislation in the Senate, as there is also another bill in the House called the USA Freedom Act, which was introduced earlier in the month.