USA Liberty Act Needs a Real Backdoor Fix for FISA 702

Written by Michelle Richardson

This is the second post in a series discussing the USA Liberty Act, the first bill introduced to reform FISA Section 702. READ THEM HERE: Part 1 | Part 3

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, the USA Liberty Act, includes many important provisions, but has a serious flaw: it fails to ensure that the government obtains a warrant before searching through its mass 702 databases for the communications of U.S. persons, defined as U.S. citizens and lawful permanent residents.

Section 702 allows the government to broadly collect foreign intelligence information with the help of American communications service providers. It is used by the NSA, FBI, and CIA, and surveillance under this law must be targeted at foreigners overseas. According to public reports, there were 106,000 targets last year, all of which were chosen without any judicial review. While U.S. persons and people in the U.S. are not the targets of this program, their communications are regularly picked up by 702 surveillance because they communicate with the foreigners who are. This does not mean these people are knowingly in contact with terrorists, but instead with people the U.S. government has deemed relevant to its overseas intelligence mission.

These “incidentally collected” communications sit in government databases for at least five years, and then can be searched for information on U.S. persons without any further judicial review. They may be even searched by the FBI for criminal or intelligence purposes, even when the Bureau does not have an open investigation on the U.S. person whose name or other identifier will be run through the system. While all agencies should be governed by tighter rules, the FBI is of particular concern because of its law enforcement function and ability to deprive people of their liberty.

Here’s where the USA Liberty Act comes in. The bill would require the government to pause after the first search for criminal evidence using a U.S. person identifier and obtain a warrant to fully access the content of the communications identified in the first search. There are exceptions for emergencies, when a person is already under surveillance with other tools, and when the search is primarily to collect foreign intelligence. We’ve registered our disappointment with this section, along with dozens of civil liberties and civil rights organizations. The bill already concedes access to a huge amount of data that the House of Representatives has repeatedly voted to protect with a warrant, including all records and essentially all work of the NSA, CIA, and NCTC.

Congress must get the backdoor fix right. How can the public be sure the FBI won’t use its foreign intelligence loophole to trump the criminal warrant requirement? The version of the fix in the USA Liberty Act relies on the government enforcing a wall between its criminal and intelligence wings – a wall that that has not really been in place since shortly after 9-11. In fact, the Attorney General’s Guidelines for FBI Domestic Investigations are quite clear:

Hence, these Guidelines do not require that the FBI’s information gathering activities be differentially labeled as “criminal investigations,” “national security investigations,” or “foreign intelligence collections,” or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI’s legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives. In many cases, a single investigation will be supportable as an exercise of a number of these authorities – i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence.

The Guidelines go on to provide two pages of examples where criminal, national security, and foreign intelligence investigations overlap in ways that cannot be untangled in any meaningful legal or policy way.

While the FBI is exempted from reporting on its U.S. person searches, it has released a couple of statistics that suggest it would interpret very narrowly the class of cases to which the warrant requirement in the USA Liberty Act would apply. It claimed to have searched its 702 databases for a U.S. person solely for criminal purposes only once in 2016. However, the FBI also told the FISA Court that it could not adopt accountability measures adopted by the NSA because the intelligence agencies query Americans’ information “much more rarely” than the FBI. Just a partial count of NSA and CIA searches on Americans numbers around 30,000. With the FBI’s too-clever-by-half accounting of its criminal uses of 702 data, is the FBI suggesting it would conduct tens of thousands of searches without a warrant, regardless of the requirements in the USA Liberty Act?

The executive branch has long justified its need for 702 by discussing surveillance of terrorists abroad. A full backdoor fix would do nothing to impede that authority, and would only ensure that the rights of U.S. persons and people here in the U.S. are protected.

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