Promising Hearing on Section 702

On Wednesday, March 1, the House Judiciary Committee held a promising hearing to review Section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires on Dec. 31, 2017 unless reauthorized. Section 702 authorizes surveillance targeting non-U.S. persons reasonably believed to be outside the United States if a “primary purpose” of the surveillance is to collect foreign intelligence information. Section 702 surveillance programs were among the more prominent surveillance programs revealed in 2013 by Edward Snowden.

After a lengthy, reportedly well-attended classified session with intelligence officials, only a handful of members returned for the open session. But the members who did return made the most of their time; in particular, Representatives Ted Lieu (D-CA), Raul Labrador (R-ID), Ted Poe (R-TX), and Jim Jordan (R-OH) asked many of the right questions and signaled the need for meaningful reforms to 702 to protect civil liberties. Their questions and concerns suggest that Section 702 reauthorizing legislation must include substantial reforms in order to get through the House Judiciary Committee.

Backdoor searches and the use of 702 information in criminal investigations

Concerns about Americans’ constitutional rights dominated the questions at the hearing. Members expressed deep concerns about the ability of law enforcement agencies to collect Americans’ communications without a warrant by using Section 702 authorities targeting other people, then search for and use Americans’ communications incidentally collected under Section 702.

“[U]nder section 702, if you are an American citizen and you’re caught up in this surveillance, that information can be passed through the FBI, [which can then] do a criminal proceeding and do a criminal case against you,” Representative Ted Lieu said. “To me, that is just a flat out violation of the Fourth Amendment.”

Representative Ted Poe said that using 702 information to build a criminal case against an American without a probable cause warrant is “illegal and a violation of the Constitution. An abuse of power by our government on Americans.”

Members also highlighted the need for the intelligence community to produce an estimate of how many Americans’ communications are collected under 702, which lawmakers and civil society have been requesting for several years.

The breadth of collection under 702

Members also expressed concerns about the breadth of surveillance that Section 702 permits. In particular, Representative Lieu questioned the NSA’s authority to use 702 collection for broad “foreign affairs” purposes. “[T]hat could apply to academics, students, human rights activists, lawyers. . . . Because foreign affairs is virtually everything,” Lieu said.

International concerns

Almost absent from the conversation were concerns about the privacy rights of non-U.S. persons located abroad, whose communications can be targeted under Section 702. Because the surveillance authority under 702 is so broad, many non-U.S. persons who are not connected in any way to terrorism and pose no threat to national security can be targeted for surveillance nonetheless.

The lack of attention to the rights of non-U.S. persons abroad is unfortunate, and we are hopeful it will be corrected in future hearings on Section 702. Not only do non-U.S. persons have privacy rights that the U.S. has committed to uphold in the International Covenant on Civil and Political Rights, but protecting those rights is critical to U.S. economic interests. European Union law requires that data of European citizens can be transferred outside Europe only to countries whose data protection rules meet an adequacy test. Last year, trans-Atlantic trade was thrown into question when the Court of Justice of European Union ruled that the “Safe Harbor” arrangement between the EU and the U.S., which was designed to help the U.S. meet the adequacy test, was ill-conceived because European authorities had not properly weighed the ease with which the U.S. government can access Europeans’ communications content under Section 702 and other authorities.

The EU and the U.S. replaced the “Safe Harbor” with the “Privacy Shield” arrangement, which is also designed to preserve Europeans’ data protection rights. Absent reform to Section 702, the Privacy Shield, which faces at least three pending legal challenges in Europe, is at risk.

The implications of 702’s broad surveillance authority on the viability of Privacy Shield were only briefly mentioned. However, in a letter to the House Judiciary Committee on March 1, the Internet Infrastructure Coalition wrote that “[a]ppropriate reforms to [Section 702] could support the long term viability of the essential data transfers enabled by the current regime.”

Looking ahead

Overall, the members’ engagement during the March 1 hearing suggests strong support for meaningful reform to the statute. Reforms to the breadth of 702 and to the backdoor searching and use of 702 information in criminal investigations are necessary to protect the privacy and civil liberties of Americans and of people abroad.