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Last week, Congress passed landmark legislation renewing for six years the US government’s most important surveillance programs under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The legislative process surrounding the bill was fraught and highly divisive for both parties in Congress. Although early judgments cannot be conclusive, the result — continuing the Section 702 program with minor changes — may well signal the ebbing of the wave of reaction from the 2013 Snowden revelations concerning US intelligence spying on the activities of American citizens.
In 2015, a coalition of libertarian-leaning Republicans had combined with liberal privacy-advocate Democrats to force the ending of the so-called metadata (bulk data collection) intelligence collection program with the passage of the USA Freedom Act. In the current legislative battle, the defeat of that coalition on Section 702 reauthorization heralds a new balance of power between security hawks and pro-privacy and libertarian forces.
To review, under Section 702, the government is authorized to direct, without a warrant, US telecom and internet companies — for example, Facebook, Google, and AT&T — to collect information such as e-mails and other communications from foreigners outside the US. Given the geographically anonymous nature of the internet, numerous Americans are swept up in this dragnet, even after the companies have taken steps to minimize these instances. Under a program that was temporarily suspended last year after repeated criticism by the special FISA court, US intelligence agencies were also allowed to query data that was “about” an individual or organization. The “about” data could emerge when a selected communication contained a mention of another person or organization.
While there are several contentious issues surrounding the Section 702 program, the flashpoints in the months-long debate and legislative maneuvering over reauthorization revolved around two issues. The most important and the most difficult issue is related to demands for greater privacy protections for US citizens swept into the dragnet — and particularly the FBI practice of using Section 702 information for domestic criminal cases, which under normal circumstances would be a violation of the Fourth Amendment. The second issue, which received less substantive and political attention, is related to whether and under what conditions the “about” program could be reinstated.
In the end, Congress agreed to minimal changes in the process and conditions under which US intelligence agencies — and the FBI — can query data. Specifically, the FBI would need to get court approval under narrow circumstances. The warrant would come only late in an investigative process, after the FBI has already opened a criminal case against an American caught up in the data sweep, and even if there are no national security implications. The compromise has been labeled “fake reform” by critics such as Sen. Ron Wyden (D-OR), who pointed out that the legislation would still permit wide latitude for the FBI, without a warrant, to query American citizens’ communications because of unproven tips and before it had enough evidence to open a formal criminal investigation. Further, on the “about” intelligence, Congress agreed to allow intelligence agencies to restart the program after clearing the action with the FISA Court, and notifying Congress, which would have the option to veto such an action within 30 days.
Here are the most important political and policy takeaways from the legislative history of Section 702 reform:
Whatever the conflicted legislative history, the ultimate version of the FISA Section 702 reauthorization signals a major victory for more hawkish supporters of US government foreign (and domestic in some cases) surveillance programs. The legislation passed the Senate and House decisively — 65-34, and 256-164. After months of debate and widespread press coverage, it cannot be said that Congress did not know what it was legislating. Barring a Snowden-size set of new revelations exposing additional US intelligence agencies’ secret programs, privacy and libertarian advocates face a long six years before major changes in current foreign intelligence programs and practices are reviewed.
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