Warrantless backdoor searches (FISA Section 702)

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Both congressional intelligence committees have now released proposals for reauthorizing the government's Section 702 spying powers, largely as-is, and in the face of repeated abuse.

The House Permanent Select Committee on Intelligence (HPSCI) in the U.S. House of Representatives released a Nov. 16 report calling for reauthorization, which includes an outline of the legislation to do so. According to the report, the bill would renew the mass surveillance authority Section 702 and, in the process, invokes a litany of old boogeymen to justify why the program should continue to collect U.S. persons’ communications when they talk with people abroad.
Not wanting to be outdone, this week the Senate Select Committee on Intelligence proposed a bill that would renew the surveillance power for 12 years—until 2035. Congress has previously insisted on sunsets of post-9/11 surveillance authorities every four to six years. These sunsets drive oversight and public discussion, forcing transparency that might not otherwise exist. And over the last two decades, periodic reauthorizations represent the only times that any statutory limitations have been put on FISA and similar authorities. Despite the veil of secrecy around Section 702, intelligence agencies are reliably caught breaking the law every couple of years, so a 12-year extension is simply a non-starter.



Dr. Rand Paul Introduces Legislation to Restore and Protect Americans’ Fourth Amendment Rights​

Today, U.S. Senator Rand Paul (R-KY) introduced the Fourth Amendment Restoration and Protection Act. The bill would ensure Americans cannot be subjected to government surveillance upon the order of the secretive Foreign Intelligence Surveillance Court (FISC) or Executive Order 12333. While national security requires the ability to gather intelligence on foreign threats, using those authorities to conduct warrantless spying on Americans is an impermissible violation of the rights guaranteed to us by the Fourth Amendment.

The Foreign Intelligence Surveillance Act (FISA) was enacted to protect the rights of Americans against the surveillance abuses documented by the Church and Pike Committees. Yet, events over the course of the last several years demonstrate that FISA has failed to prevent a recurrence of abuses that violate constitutionally protected rights. In fact, FISA’s secretive and one-sided process invites the kind of abuse the law was intended to combat. This abuse is almost never remedied because, unlike the open and adversarial process afforded by Article III courts, FISA denies defendants the ability to effectively challenge the validity of surveillance warrants. Dr. Paul’s legislation is a necessary remedy to this dangerously flawed process.

“No secret, unaccountable court should be allowed to authorize spying on American citizens,” said Dr. Paul. “My Fourth Amendment Restoration and Protection Act would exempt Americans from the FISA process and ensure both constitutional rights and national security are protected.”

Specifically, the Fourth Amendment Restoration and Protection Act would:
  • Preserve the ability of the Foreign Intelligence Surveillance Court to order surveillance of foreigners and terrorists;
  • Require the government to obtain an order from traditional Article III federal courts to surveil U.S. persons by prohibiting the government from requesting an order from the FISC for surveillance, searches, and seizures relating to U.S. persons;
  • Prohibit the government from conducting information queries of a U.S. person pursuant to section 702 of FISA or Executive Order 12333;
  • Prohibit the government from introducing in evidence any information concerning a United States person acquired or derived from an acquisition under FISA or Executive Order 12333 but preserve the right of the defense to introduce such information as exculpatory evidence; and
  • Ensure that the executive branch cannot violate constitutional rights through executive orders by mandating that statutory authorities and the Federal Rules of Criminal Procedure are the exclusive means by which searches or acquisitions shall take place if the target is a U.S. person.

You can read the Fourth Amendment Restoration and Protection Act HERE.

Yet another bill addressing section 702 and privacy - this one in the House:
Representatives Andy Biggs (R-AZ), Jerry Nadler (D-NY), Jim Jordan (R-OH), Pramila Jayapal (D-WA), Warren Davidson (R-OH), Sara Jacobs (D-CA), and Russell Fry (R-SC) have introduced the Protect Liberty and End Warrantless Surveillance Act (PLEWSA), which would rein in the government’s growing ecosystem of warrantless surveillance authorities as part of reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is due to expire on December 31.

The PLEWSA’s key reforms include:
  • Requiring a warrant for searches of Americans’ communications collected under Section 702;
  • Bolstering the FISA Court safeguards and accountability measures for misuse of surveillance authorities;
  • Codifying the end to “abouts” collection pursuant to Section 702; and
  • Including the Fourth Amendment Is Not for Sale Act, which prohibits intelligence and law enforcement agencies from exploiting the Data Broker Loophole to purchase location and other sensitive information.

WASHINGTON, Dec 5 (Reuters) - FBI Director Christopher Wray will press a Senate committee on Tuesday to renew the authority of the U.S. government to conduct warrantless surveillance outside the United States, arguing that failing to do so would be “a form of unilateral disarmament.”

Wray is expected to cite threats from Iran and China to argue that the sweeping surveillance powers authorized under Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire at the end of this month, are vital to U.S. national security.

Sen. Lee goes into savage mode at around 5:00 mark (through the end):

Earlier this week, both the House Committee on the Judiciary (HJC) and the House Permanent Select Committee on Intelligence (HPSCI) marked up two very different bills (H.R. 6570 - Protect Liberty and End Warrantless Surveillance Act in HJC, and HR 6611, the FISA Reform and Reauthorization Act of 2023 in HPSCI), both of which would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA)—but in very different ways. Both bills head to the House floor next week under a procedural rule called “Queen of the Hill,” where the bill with the most votes gets sent to the Senate for consideration.

While renewing any surveillance authority remains a complicated and complex issue, this choice is clear - we urge all Members to vote NO on the Intelligence Committee’s bill, H.R.6611, the FISA Reform and Reauthorization Act of 2023.
By contrast, the House Judiciary Committee bill, H.R. 6570, the Protect Liberty and End Warrantless Surveillance Act, would actually address a major problem with Section 702 by banning warrantless backdoor searches of Section 702 databases for Americans’ communications. This bill would also prohibit law enforcement from purchasing Americans’ data that they would otherwise need a warrant to obtain, a practice that circumvents core constitutional protections. Importantly, this bill would also renew this authority for only three more years, giving Congress another opportunity to revisit how the reforms are implemented and to make further changes if the government is still abusing the program.

EFF has long fought for significant changes to Section 702. By the government’s own numbers, violations are still occurring at a rate of more than 4,000 per year. Our government, with the FBI in the lead, has come to treat Section 702—enacted by Congress for the surveillance of foreigners on foreign soil —as a domestic surveillance program of Americans. This simply cannot be allowed to continue. While we will continue to push for further reforms to Section 702, we urge all members to reject the HPSCI bill.

The EFF set up a page to make it easy for folks to contact their Representatives and lobby on this issue:

Edit: I just sent my Congressman an email on this issue.
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House hesitates over votes on spy authority renewal bills​

A plan to vote on two competing House bills that would reauthorize a powerful surveillance authority ran into trouble Monday evening, with Republicans at odds over proposals that take different paths on privacy protections.

The House discussed the bills to renew Section 702 of the Foreign Intelligence Surveillance Act at a Rules Committee meeting Monday, and Republicans had been aiming for floor votes as early as Tuesday.


National Review opinion piece

Reauthorize Section 702 of FISA​

The FBI has conducted itself abysmally, and therefore Section 702 has got to go.

That’s the logic of opponents of reauthorizing the long-standing statutory provision that governs intelligence collection targeting non-Americans outside the United States.

We do not endow federal agents with surveillance powers because they are honorable people who scrupulously follow the letter of the law, though. We grant these powers — the capacity to discover and thwart the machinations of hostile foreign regimes and terrorist organizations — only because they are necessary to protect the United States.

That’s the logic of opponents of reauthorizing the long-standing statutory provision that governs intelligence collection targeting non-Americans outside the United States.
Because they keep using it against Americans, dUh!

Happy to say my Congressman voted Nay.
While it is frustrating that Congress ignored the urgent need for significant Section 702 reform before the December 31 deadline, reform advocates should not lose hope. The current stalemate also means that the pro-surveillance hardliners of the intelligence community were not able to jam through their expansion of the program based on the same old scare tactics they’ve used for years. Fortunately, it seems that many members of the House and Senate have heard our message. While renewing any surveillance authority remains a complicated and complex issue, this choice is clear: we continue to urge all Members to oppose the Intelligence Committee’s bill, H.R.6611, the FISA Reform and Reauthorization Act of 2023.

Additionally, in the moments leading up to a possible floor vote, many House members (and some Senators) have made public statements calling for reform. Notably, that list includes the current House Speaker, Mike Johnson, who told Fox News that Section 702 “... was also abused by the FBI, by our own government, over almost 300,000 times between 2020 and 2021, and so the civil liberties of Americans have been jeopardized by that. It must be reformed."

So, while we are disappointed that Congress chose to leave for the holidays without enacting any of these absolutely necessary reforms, we are already making plans to continue this fight in the New Year. We are also grateful for the calls and emails from our members and supporters; these have absolutely made an impact and will be more important than ever in the fight to come.

... Debate last year over renewing Section 702 of the Foreign Intelligence Surveillance Act held Congress and the president to a brief extension before the holidays. That leaves legislators arguing the law's fate before an April deadline, with none of the controversy over spying and privacy yet settled. ...


The new version of the Foreign Intelligence Surveillance Act (FISA) Section VII “reform” bill was posted earlier this afternoon on the House Rules Committee website. Its backers will no doubt try to sell it as a genuine reform measure. In reality, it’s an example of the classic Capitol Hill game of “Let’s not, but say we did.”

To give you a sense of how successful the National Security State‐friendly House Intelligence Committee has been in hijacking this debate, remember that it was less than two months ago that the House Judiciary Committee—which has always had primary jurisdiction over FISA since its enactment in 1978—passed an excellent and substantive FISA reform bill out of its committee by an incredible 35–2 bipartisan vote. That bill contains two incredibly important provisions: 1) a warrant requirement for FBI personnel if they want to access stored FISA Section 702 data on US Persons, and 2) language banning the purchase of information from data brokers by federal law enforcement, instead requiring a warrant to get that kind of data as well.

Neither provision is in the bill posted this afternoon by the House Rules Committee.

Also of note is that the new bill creates a special carveout for House and Senate members to be informed if the FBI conducts a FISA Section 702 database query that returns or might return information on the member of Congress:


House Freedom Caucus is hosting a press conference on the FISA re-authorization today at 3pm ET (in about half an hour from the time I am posting this):

n a fiery 40‐minute press conference attended by almost a dozen House Freedom Caucus (HFC) members, the group discussed the current state of play in the legislative battle over reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), and specifically the Section 702 FISA mass electronic surveillance program that has been the subject of controversy and abuse throughout its fifteen‐year existence.

Some made clear they were tired of the “spying and lying” and the efforts of other House members to “subvert” the Fourth Amendment (in the words of Rep. Scott Perry [R‑PA]). Rep. Tim Burchett (R‑TN) warned that “we could lose our country” unless real reforms to the FISA Section 702 program are enacted. Rep. Warren Davidson (R‑OH) reminded everyone that “Freedom lost is rarely regained,” and repeated his call for an amendment process to improve a leadership‐driven FISA bill that every speaker harshly criticized.

The HFC’s top priorities: mandating a warrant requirement for FISA Section 702 database searches involving American citizens, and the enactment of the “Fourth Amendment is Not for Sale Act” to close the “data broker” loophole, which currently allows the FBI and other law enforcement organizations to simply buy sensitive data on US citizens without ever having to get a warrant.

The House Rules Committee will meet tomorrow to decide whether to make such amendments in order in time for an expected Thursday House floor fight over the fate of FISA Section 702.


That report is from yesterday, so the HFC is meeting today to make the amendments.
Maximum public transparency has never been achieved during prior congressional debates over the Foreign Intelligence Surveillance Act (FISA) Section 702 electronic surveillance program. In an effort to break that pattern, the Cato Institute today filed a motion for a preliminary injunction (along with my declaration) against the Department of Justice (DOJ) over a long‐standing Cato Freedom of Information Act (FOIA) request seeking internal DOJ audits of the Section 702 program.


White House goes to court, not Congress, to renew warrantless spy powers​

The Biden Administration has asked a court, rather than Congress, to renew controversial warrantless surveillance powers used by American intelligence and due to expire within weeks. It's a move that is either business as usual or an end-run around spying reforms, depending on who in Washington you believe.

Both may be true.

US Senator Ron Wyden (D-OR) railed at the US Department of Justice's decision to seek a year-long extension of Section 702 of the Foreign Intelligence Surveillance Act, which is set to end in mid-April unless Congress reauthorizes it.

"A broad bipartisan, bicameral coalition agrees that FISA Section 702 should be reauthorized with reforms to protect the rights of Americans," Wyden said in a statement. "Yet rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all."


Today, WIRED reported that HPSCI Chairman Mike Turner (R-OH) invoked the need to search for American protesters’ communications during a briefing on the need to reauthorize Section 702, a controversial and sweeping warrantless surveillance authority. According to WIRED, Chairman Turner, in opposing a warrant requirement limiting agencies’ ability to search for Americans’ communications within Section 702 databases, included slides referring to anti-war activists in New York protesting U.S. aid to Israel. While Section 702 is a foreign intelligence program, Foreign Intelligence Surveillance Court (FISC) opinions and government reports have revealed agencies have improperly sought Americans’ communications, including protestors, donors to a political campaign, and politicians.

“Americans exercising their constitutional right to protest have a right to be free from warrantless surveillance. There should be no suggestion that foreign intelligence authorities can be used to target protestors; that would be counter to our core American values. This discussion is one more example of why Congress must pass a warrant requirement to ensure that these searches are not subject to abuse.”

From the link:

WASHINGTON – With the April 19 sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) approaching in just a few weeks, Senators Mike Lee (R-UT) and Dick Durbin (D-IL) today introduced the bipartisan Security and Freedom Enhancement (SAFE) Act, a bipartisan compromise bill that protects Americans from foreign threats and from warrantless government surveillance. This legislation reflects a carefully crafted, pragmatic approach that protects national security by reauthorizing Section 702 of FISA and protects Americans’ privacy and civil liberties by enacting meaningful safeguards against warrantless surveillance and government abuses.

"The documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment Rights of American citizens," said Sen. Lee. "From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these actions reveal a blatant disregard for individual liberties. Upholding the Fourth Amendment isn't optional—it's a duty. Our proposed reforms to FISA Section 702 are common sense and imperative to restoring trust in our government's commitment to upholding Americans' rights under the Constitution."

There is little doubt that Section 702 is a valuable national security tool. However, while only foreigners overseas may be targeted, the program sweeps in massive amounts of Americans’ communications, which may be searched without a warrant. Even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans’ communications in just one year—more than 500 warrantless searches per day,said Sen. Durbin. Our bipartisan legislation—the SAFE Act—is a sensible, bipartisan path forward on reauthorizing Section 702 with meaningful reforms.”


The SAFE Act, like other reform bills introduced this Congress, attempts to roll back some of this warrantless surveillance. Despite its glaring flaws and omissions, in a Congress as dysfunctional as this one it might be the bill that best privacy-conscious people and organizations can hope for. For instance, it does not do as much as the Government Surveillance Reform Act, which EFF supported in November 2023. But imposing meaningful checks on the Intelligence Community (IC) is an urgent priority, especially because the Intelligence Community has been trying to sneak a "clean" reauthorization of Section 702 into government funding bills, and has even sought to have the renewal happen in secret in the hopes of keeping its favorite mass surveillance law intact. The administration is also reportedly planning to seek another year-long extension of the law without any congressional action. All the while, those advocating for renewing Section 702 have toyed with as many talking points as they can—from cybercrime or human trafficking to drug smuggling, terrorism, or even solidarity activism in the United States—to see what issue would scare people sufficiently enough to allow for a clean reauthorization of mass surveillance.

So let’s break down the SAFE Act: what’s good, what’s bad, and what aspects of it might actually cause more harm in the future.


Congressional jellyfish have the gov shutdown gun to their heads, so there isn't going to be any meaningful discussion on this issue. :(

The White House is Wrong: Section 702 Needs Drastic Change​

With Section 702 of the Foreign Intelligence Surveillance Act set to expire later this month, the White House recently released a memo objecting to the SAFE Act—legislation introduced by Senators Dick Durbin and Mike Lee that would reauthorize Section 702 with some reforms. The White House is wrong. SAFE is a bipartisan bill that may be our most realistic chance of reforming a dangerous NSA mass surveillance program that even the federal government’s privacy watchdog and the White House itself have acknowledged needs reform.

As we’ve written, the SAFE Act does not go nearly far enough in protecting us from the warrantless surveillance the government now conducts under Section 702. But, with surveillance hawks in the government pushing for a reauthorization of their favorite national security law without any meaningful reforms, the SAFE Act might be privacy and civil liberties advocates’ best hope for imposing some checks upon Section 702.

Section 702 is a serious threat to the privacy of those in the United States. It authorizes the collection of overseas communications for national security purposes, and, in a globalized world, this allows the government to collect a massive amount of Americans’ communications. As Section 702 is currently written, intelligence agencies and domestic law enforcement have backdoor, warrantless access to millions of communications from people with clear constitutional rights.



On FISA, What Is DoJ Hiding?​

Last June, the Cato Institute filed a Freedom of Information Act (FOIA) request with the Department of Justice (DoJ) seeking the underlying internal FBI audits of its own compliance with the Foreign Intelligence Surveillance Act (FISA) Section 702 program. Months went by. Via email, I asked the DoJ FOIA office what the hold‐up was. In October 2023, they said they’d identified the records and would send them to the FBI for review. More months went by with no records.

Earlier this year, Cato filed a FOIA lawsuit and a preliminary injunction seeking the release of the records. Our intent was (and remains) to make those records public once they’re in our hands. We wanted those records made public before any final vote on the FISA reform legislation currently pending before the House is acted upon.



Inside the House GOP’s surveillance law nightmare​

House Republicans are plunging headlong into another divisive debate — this time over government spy powers, a battle that pits them against each other and reveals deep-seated uncertainty about their party’s ideological direction.

Reapproving the section of the Foreign Intelligence Surveillance Act known as Section 702, which allows the intelligence community to collect and search through the communications of foreign targets without a warrant, was always going to be difficult given the sour relationship between some Republicans and the FBI. But that skepticism, which dates back to the FBI’s initial investigation into Donald Trump’s 2016 campaign, is only the start of the party’s problems on surveillance policy, according to interviews with nearly 20 GOP aides and lawmakers.

There was a time when government surveillance powers united Republicans to an unparalleled degree, particularly in the years after the Sept. 11, 2001 terrorist attacks. Even after George W. Bush left office, former President Barack Obama relied on Republicans to provide political cover during debate over reauthorizing the wiretapping power.

Now the spy fight is emblematic of Trump-era House GOP chaos, threatening to further roil the tenure of Speaker Mike Johnson.


Late yesterday (April 9), the House Rules Committee held a marathon hearing to set the terms of debate, including allowable amendments, for the controversial Reforming Intelligence and Securing America Act (RISAA, H.R. 7888), the bill to reauthorize the soon‐to‐expire Foreign Intelligence Surveillance Act (FISA), and specifically the repeatedly abused Section 702 of the law. And as you can see from the screenshot from TruthSocial, former President Trump weighed in very early this morning against FISA even being reauthorized.

For surveillance reformers, the news out of the Rules Committee is mixed. ...


These kinds of things can be hard to quantify, but I imagine that former President Trump’s blistering TruthSocial post this morning telling Congress to “Kill FISA” probably had some impact on the 19 House GOP members who voted against the procedural motion to bring the FISA “reform” bill to the House floor. The question now is what happens next?
In terms of where Speaker Mike Johnson (R‑LA) can go from here on FISA, it would seem he has two basic options: 1) bring up another temporary extension of the program in the hopes of finally getting a FISA bill through the House later this month or sometime in May, or 2) restart the process in the House Rules Committee with one of the existing FISA bills discussed to date and allowing a far more open legislative process on the House floor. While either of those could still happen this week, the odds are better that a renewed FISA push in the House will happen early next week.


Bill Barr blasts Trump for call to kill FISA: ‘Crazy and reckless’​

Former Attorney General Bill Barr on Wednesday denounced former President Trump’s exhortation for Congress to kill the Foreign Intelligence Surveillance Act (FISA) as “crazy and reckless” and warned there will be “blood on people’s hands” if the intelligence community’s surveillance authority expires and there’s a terrorist attack on the United States.

Barr, who served in Trump’s Cabinet in 2019 and 2020, noted that Trump at one time supported the expanded surveillance powers authorized under Section 702 of FISA and warned that political “posturing” against extending that authority would be dangerous to national security.

“I think it’s crazy and reckless to not move forward with FISA. It’s our principal tool protecting us from terrorist attacks. We’re living through a time where those threats have never been higher, so it’s blinding us, it’s blinding our allies,” Barr told The Hill in an interview.

“I think President Trump’s opposition seems to have stemmed from personal pique rather than any logic and reason. The provision that he objects to has nothing to do with the provision that’s on the floor,” he said, referring to the legislation that would reauthorize Section 702 of FISA, which stalled in the House on Wednesday after 19 Republicans voted to defeat a rule to move it forward not long after Trump said it should be killed.



Supercharged Spying Provision Buried In "Terrifying" FISA 702 Reauthorization​

On Monday, the House finalized procedural business on a bill to reauthorize the nation's warrantless surveillance powers under the Foreign Intelligence Surveillance Act (FISA), which Sen. Ron Wyden (D-OR) called "one of the most dramatic and terrifying expansions of government surveillance authority in history."

"I will do everything in my power to stop it from passing in the Senate," said Wyden in a Friday post to X.


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