FISA 702 Reform: The USA Liberty Act Puts an End to “About” Collection

This blog is the first in a series discussing the USA Liberty Act, and will focus on so-called “about” collection. READ THEM HERE: Part 2 | Part 3

Last week, a bipartisan group of Representatives introduced H.R. 3989, the USA Liberty Act, which would reauthorize Section 702 of the FISA Amendments Act for an additional six years. The bill also represents the first effort at substantively reforming Section 702 in advance of the spying authority’s sunset on December 31. One of the bill’s most important provisions is its ban on collecting communications that are neither to nor from a target overseas, a practice colloquially known as “about” collection.

As we’ve discussed in detail, Section 702 of FISA allows the government to surveil foreigners overseas with the compelled assistance of U.S. communications and technology companies in order to collect foreign intelligence information. The law casts a broad net and permits surveillance for purposes way beyond investigations into terrorist activity, including to collect information related to the undefined categories of “foreign affairs” and “national defense,” a practice we have criticized. According to public reporting, the NSA, FBI, and CIA used the authority to surveil 106,000 targets last year. The law also allows the government to collect, keep, and use the information of all the U.S. persons that are in contact with those 106,000 targets—without individualized judicial approval.

In 2013, the Snowden leaks revealed a surprising interpretation of 702 that allows the government to collect not only the communications that are to or from a target, but communications about a target. In “about” collection, the government invades the privacy of two or more people who merely mention an identifier of a surveillance target even though neither person is himself under surveillance. This runs contrary to the practice in normal criminal electronic surveillance: officials don’t get a surveillance order permitting them to listen in on everyone in order to find communications that mention the actual target.

Searches for communications “about” a target look at the content of communications as they pass over the internet backbone, and according to a ruling of the FISA Court in 2011, pose a special risk of collecting both purely domestic and completely irrelevant information. Because of these risks, the FISA Court instituted especially strict use limits on information collected this way – which the public learned this year were systemically violated for some unknown period of time. Because the government could not fix the systemic violation of the privacy rules, this “about” collection was stopped by the FISA court during its annual program review. The court order undergirding the current 702 program prohibits “about” collection until April of 2018.

Importantly, the USA Liberty Act prevents this program from being resurrected by the FISA Court and the NSA for the entire period for which the bill would extend Section 702. The provision simply states that the NSA, when conducting surveillance under Section 702, must collect only communications that are to or from a target. This is crucial; when asked earlier this year, the NSA would not rule out seeking approval to restart “about” collection once compliance issues are worked out.

Advocates of expansive surveillance will likely try to frame “about” collection as a simple compliance problem, which if solved should permit a restart of this collection. But in the FISA Court’s own words, ending the “about” collection “substantially reduce[s] the acquisition of non-pertinent information concerning U.S. persons pursuant to Section 702.”

If you don’t believe the FISA Court, hear it straight from the NSA: “These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency’s foreign intelligence targets.” 

Kudos to Representatives Goodlatte (R-VA), Conyers (D-MI), Sensenbrenner (R-WI), and Jackson-Lee (D-TX) for finally putting an end to this practice. There are many steps between introduction of this bill and passage of a reauthorization this winter, and we look forward to working with them to keep the ban on “about” collection in the final product.