Privacy and civil-liberties advocates were dealt a big hit last week, when the U.S. Congress reauthorized a set of controversial NSA surveillance practices for six years and added provisions to expand them.
The FISA Amendments Reauthorization Act, passed by the Senate in a 65-34 vote Thursday and signed by President Donald Trump on Friday, reauthorizes surveillance programs like Prism and Upstream under Section 702 of the Foreign Intelligence Surveillance Act and formally authorizes some of their most controversial practices.
Some privacy advocates called the changes Congress made to the surveillance programs a step backward.
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“We’re concerned that the bill actually made the state of the law worse,” says Neema Singh Guliani, legislative counsel with the American Civil Liberties Union. “Instead of instituting much-needed reforms, lawmakers voted to give the Trump administration broad powers to spy on Americans and foreigners at home and abroad without a warrant.”
Despite calls for new privacy protections, the bill took no steps to curb the NSA’s surveillance of people outside the United States and failed to address several privacy concerns related to U.S. communications the NSA “incidentally” collects:
The law permits the FBI to continue so-called backdoor searches for U.S. records caught up in NSA surveillance. For the first time, it appears to codify those backdoor searches, instead of forcing the FBI to rely on a Foreign Intelligence Surveillance Court interpretation.
The FBI, in many cases, is authorized to continue searching for U.S. communications swept up in the NSA surveillance programs without getting a court-ordered warrant.
The NSA is authorized to resurrect the currently suspended practice of so-called “about” collection, through which the agency collects not only the communications that are to and from a targeted individual, but also communications about the target. If, for example, two innocent people mentioned a targeted person’s email address in their own email chain, “about” collection would allow the NSA to scoop up those emails.
The new language in the provision may actually allow the NSA to expand “about” collection by scooping up communications that mention only a terrorism suspect’s name. In the past, the NSA has been allowed to collect those communications only if they also included a suspect’s email address, phone number, or other identifier.
“[T]heir so-called reforms actually make the letter of the law worse, and in some ways, may even expand the government’s surveillance authority.”—Robyn Greene, policy counsel, New America Foundation
Supporters of the bill, which passed in the House of Representatives earlier in January, said FISA surveillance programs are needed to protect the United States from terrorism. Section 702 is the “single most important surveillance tool that exists to keep the American people safe,” Sen. Richard Burr, a North Carolina Republican, said during a debate on the legislation.
The Senate vote prioritized the “safety of America and our allies,” Daniel Coats, U.S. director of national intelligence, added in a statement. The bill’s passage “ensures that America’s intelligence officers can continue to use this vital tool in their 24/7 critical mission, while remaining true to the nation’s values.”
Advocates for civil liberties and privacy disagree.
The bill is worse than “a clean reauthorization” of the past Section 702 surveillance programs, says Robyn Greene, policy counsel at the New America Foundation’s Open Technology Institute. “Its proponents are trying to sell it as a reform bill by pointing to fig leaves that are meant to look like new privacy protections, but their so-called reforms actually make the letter of the law worse, and in some ways, may even expand the government’s surveillance authority.”
The legislation includes a new provision requiring the FBI, in some cases, to obtain a court-ordered warrant before using U.S. communications swept in the NSA surveillance programs in a criminal case, but it doesn’t require the FBI to get court approval before browsing the communications in the first place.
Section 702 allows the NSA to target the emails, texts, and other communications of people outside the United States, but the agency’s surveillance also sweeps up and hangs on to an undisclosed number of communications between U.S. residents and those overseas targets.
The new warrant requirement, touted by supporters as a major reform of Section 702, is “the epitome of faux reform,” Greene says. The provision allows warrantless searches of U.S. communications to continue even “when the government has no reason to believe that wrongdoing did or will occur.”
Greene questions whether the FBI would ever need to get a warrant after browsing through U.S. communications held by the NSA. The warrant requirement “creates a perverse incentive for the FBI to search Americans’ communications as early as possible so as to not allow the warrant requirement trigger, effectively giving people who are the subject of government fishing expeditions less constitutional protections than those who are the subject of predicated investigations,” she says.
The bill’s section on “about” collection isn’t even faux reform, Greene says. “It makes both law and practice worse,” she says. “It not only codifies an expansive surveillance practice that isn’t happening right now because of the government’s egregious compliance violations, it expands it.”
Although Section 702 surveillance won’t need reauthorization until 2024, the ACLU’s Guliani believes it’s still worth fighting for reforms.
“We will use every tool at our disposal to stop the continued abuse of these spying powers,” she says.