Urgent Fix Needed: USA Liberty Act Needs To Better Focus Surveillance Under FISA 702

Written by Mana Azarmi

This is the third post in a series discussing the USA Liberty Act, the first bill introduced to reform FISA Section 702. READ THEM HERE: Part 1 | Part 2

Last week, a bipartisan group of House Judiciary Committee members introduced the first bill to reform Section 702 of the FISA Amendments Act,  H.R. 3989, also known as the USA Liberty Act. It contains many important provisions, including an end to the collection of communications to which the surveillance target is not even party. However, it fails to limit the scope of 702 surveillance and therefore permits the surveillance of people far removed from anti-terrorism goals its proponents cite. In fact, it authorizes surveillance of people engaged in harmless activity.

Section 702 authorizes warrantless surveillance conducted in the U.S. of non-U.S. persons (non-citizens and non-residents) abroad for the purpose of collecting foreign intelligence information, which is to say it removes the requirement for an individualized warrant from the Foreign Intelligence Surveillance Court (FISC). Under Section 702, the Attorney General and the Director of National Intelligence apply for annual certifications from the FISC that attest that the types of information they are seeking qualify as foreign intelligence information. They are then allowed to do targeted surveillance on the basis of this certification with no need to further demonstrate that the target is an agent of a foreign power.

Section 702 sunsets on Dec. 31, 2017, and civil liberties groups like the Center for Democracy and Technology (CDT) have been advocating for smart reforms to the program so as to protect the rights of both U.S. and non-U.S. persons. Such reforms include: closing the backdoor search loophole, applying use restrictions on the data collected, and minimizing exceptions to data retention, as well as the reforms now in the USA Liberty Act.

However, if the scope of surveillance under Section 702 were to simply be reduced, all other civil liberties problems would be alleviated. Section 702 authorizes the collection of foreign intelligence information, such as information relevant to international terrorism, the international proliferation of weapons of mass destruction (WMD), and clandestine intelligence activities. While CDT does not deny the value of 702 surveillance in furthering these goals, the problem remains that the definition of foreign intelligence information includes catchalls that allow the government to capture content merely related to “the conduct of the foreign affairs of the United States” or to the “national defense or the security of the United States.” This sweeps in a lot of innocent conduct.

Earlier this month, Senators Mike Lee and Ron Wyden wrote a letter to Director of National Intelligence Dan Coats asking the Director to comment on the testimony of then-FBI Director James Comey before the Senate Judiciary Committee on May 3, 2017. Sen. Lee asked Mr. Comey if Section 702 surveillance was used to gather “foreign affairs related information.” Mr. Comey responded, “Not that I’m aware of. I think I could be wrong, but I don’t think so. I think it’s confined to counter-terrorism, to espionage, to counter-proliferation.” In their letter, Sen. Lee and Wyden sought clarification on this important question.

When Section 702 is used to collect “foreign affairs related information” the scope of content and behaviors that can be subjects of surveillance extend well beyond the three categories Comey noted. Although there is no definition in FISA of what constitutes the conduct of foreign affairs, a safe assumption would be the programs of the Department of State and any U.S. foreign projects that are “related to” the foreign affairs of the United States. Otherwise, the U.S. would not be engaging in this activity.

Discussions, content, and activities regarding any of the below topics would fall under the specter of 702 surveillance as relating to foreign affairs:

This tiny sliver of the activities on which the U.S. engages far exceeds those that Comey outlined, and they have nothing to do with national security. This means that 702 could be used to monitor terrorist activity, as well as a climate scientist in a foreign country and a child discussing skateboarding. I am not saying that surveillance of skateboarding children and climate scientists is actually occurring; rather, I am saying the statute authorizes this surveillance – and it should not.

There is no need and no justification for so many people to be subjected to surveillance. CDT advocates for limiting the scope of the intelligence that can be collected to that which is solely necessary to accomplish what should be the focus of 702: intelligence gathering for the detection and prevention of threats to the United States such as terrorism, WMD proliferation, and espionage.

Two ways to accomplish this would be to adopt either of the below reforms to the statute:

  1. Permit surveillance under Section 702 for the full breadth of foreign intelligence information, but require that the target of surveillance be an agent of a foreign power, when the basis for targeting a person is merely to collect information that relates to the catchalls – foreign affairs and national security.
  2. Limit the types of foreign intelligence information that can be collected to the six national security uses, which, collected in bulk, can be put under PPD-28: espionage, terrorism, WMD proliferation, cybersecurity threats, threats to U.S. and allied armed forces, and transnational crime.

We await Director Coats’ response, and we urge the House Judiciary Committee to amend the USA Liberty Act to adopt one of these limitations on the Scope of Section 702 surveillance.

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