THE Protect Liberty and End Warrantless Surveillance Act
A bipartisan bill that would help put an end to civil liberties violations under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes surveillance programs targeting “non-U.S. persons” reasonably believed to be outside the United States. This is done to acquire foreign intelligence information with the compelled cooperation of U.S. telecom providers and internet companies.
Unless renewed by Congress, this surveillance authority is set to expire on Dec. 31, 2023. Reauthorization is far from certain. It should not occur without extensive reform because of the pervasive abuse of this authority by the Federal Bureau of Investigation (FBI) and other federal agencies that conduct warrantless domestic spying on American citizens.
Unless renewed by Congress, this surveillance authority is set to expire on Dec. 31, 2023. Reauthorization is far from certain. It should not occur without extensive reform because of the pervasive abuse of this authority by the Federal Bureau of Investigation (FBI) and other federal agencies that conduct warrantless domestic spying on American citizens.
Foreign Intelligence Authority Used to Spy on Americans
NSA Collects Massive Amounts of Americans’ Data Using This “Foreign Intelligence” Authority
Section 702 prohibits the government from intentionally targeting Americans — either directly or indirectly — or through “reverse targeting.” Nonetheless, in the course of surveilling hundreds of thousands of foreign targets, the NSA “incidentally” collects millions of communications to or from Americans who have done nothing to merit suspicion, let alone warrantless surveillance in violation of their Constitutional right to privacy.
Such “incidental” collection and search does not mean “accidental” — in fact, intelligence agencies have searched communications and other information acquired under Section 702 using the names of people in the United States millions of times. This overreach into Americans’ private lives is one reason why federal agencies are lobbying hard for this law to stay on the books without reforms.
FBI Abuses Section 702 Access to Conduct Warrantless Domestic Surveillance
The FBI routinely conducts warrantless searches of Section 702 databases for Americans’ communications, turning a foreign intelligence program into a tool for domestic surveillance. Recent FISA Court opinions and government audits have revealed, for example, that the FBI has conducted these “backdoor searches” for information on:
Oversight Mechanisms Fail to Protect Americans
Executive Branch oversight mechanisms and court rules have failed for more than 14 years to rein in the government’s gross violations of the Fourth Amendment and the limits Congress set in enacting Section 702. The program has been plagued since its inception by instances of systemic non-compliance — by the FBI, NSA, and CIA — with the rules designed to protect Americans’ privacy.
Section 702 prohibits the government from intentionally targeting Americans — either directly or indirectly — or through “reverse targeting.” Nonetheless, in the course of surveilling hundreds of thousands of foreign targets, the NSA “incidentally” collects millions of communications to or from Americans who have done nothing to merit suspicion, let alone warrantless surveillance in violation of their Constitutional right to privacy.
Such “incidental” collection and search does not mean “accidental” — in fact, intelligence agencies have searched communications and other information acquired under Section 702 using the names of people in the United States millions of times. This overreach into Americans’ private lives is one reason why federal agencies are lobbying hard for this law to stay on the books without reforms.
FBI Abuses Section 702 Access to Conduct Warrantless Domestic Surveillance
The FBI routinely conducts warrantless searches of Section 702 databases for Americans’ communications, turning a foreign intelligence program into a tool for domestic surveillance. Recent FISA Court opinions and government audits have revealed, for example, that the FBI has conducted these “backdoor searches” for information on:
- A sitting U.S. congressman, a local political party, and other political officials;
- Journalists and political commentators;
- Individuals working with the FBI to build better community relations through its Citizens Academy, as well as college students participating in a Collegiate Academy; and
- Victims approaching the FBI to report a crime, repairmen, FBI colleagues, and family members.
Oversight Mechanisms Fail to Protect Americans
Executive Branch oversight mechanisms and court rules have failed for more than 14 years to rein in the government’s gross violations of the Fourth Amendment and the limits Congress set in enacting Section 702. The program has been plagued since its inception by instances of systemic non-compliance — by the FBI, NSA, and CIA — with the rules designed to protect Americans’ privacy.
Five Principles for Section 702 Reform
Congress should not reauthorize Section 702 without making significant reforms to ensure these abuses end once and for all.
Specifically, legislation to reauthorize Section 702 should ensure compliance with these key principles:
1. Any surveillance that impacts Americans should be undertaken only pursuant to a statute, duly enacted by the people’s representatives in Congress.
2. Any government access to Americans’ communications or other Fourth Amendment-protected data should be undertaken only pursuant to a probable cause judicial warrant.
3. Any surveillance that impacts Americans should be subject to adequate mechanisms — in both Congress and the judiciary — to ensure accountability for compliance with governing law.
4. The government should not be able to buy its way around legal limits on collecting and accessing Americans’ information.
5. Surveillance should be no broader than necessary to protect national security.
These principles must be incorporated into any bill reauthorizing Section 702, or the authority should be allowed to lapse.
Specifically, legislation to reauthorize Section 702 should ensure compliance with these key principles:
1. Any surveillance that impacts Americans should be undertaken only pursuant to a statute, duly enacted by the people’s representatives in Congress.
2. Any government access to Americans’ communications or other Fourth Amendment-protected data should be undertaken only pursuant to a probable cause judicial warrant.
3. Any surveillance that impacts Americans should be subject to adequate mechanisms — in both Congress and the judiciary — to ensure accountability for compliance with governing law.
4. The government should not be able to buy its way around legal limits on collecting and accessing Americans’ information.
5. Surveillance should be no broader than necessary to protect national security.
These principles must be incorporated into any bill reauthorizing Section 702, or the authority should be allowed to lapse.
Related Surveillance Authorities and Other Widespread Abuses
While Section 702 is among the highest-profile examples of pervasive government surveillance, it is far from the only tool that intelligence and law enforcement agencies use to collect Americans’ private information. Rather, it is part of an ecosystem of overlapping surveillance authorities that cannot be considered in isolation. When surveillance under any of these authorities is limited or prohibited, justification for that surveillance often can simply migrate to another authority.
Indeed, surveillance sometimes takes place without any statutory authority at all. While FISA regulates government surveillance of Americans and others inside the United States, the government relies on Executive Order 12333 for much of the surveillance it conducts overseas. Even though surveillance conducted under EO 12333 increasingly collects Americans’ information, that executive order has none of the safeguards present in FISA, essentially giving the government a free hand.
Intelligence and law enforcement agencies also regularly circumvent Americans’ Fourth Amendment rights by purchasing their most private and sensitive data from data brokers. Even the FBI recently admitted to having purchased Americans’ sensitive geolocation information — information that should require a warrant to obtain, according to the Supreme Court. All we really know is that this practice of buying Americans’ data is spreading rapidly among federal agencies.
These agencies continue to deploy new and invasive surveillance technology, such as stingrays and facial recognition technology, at scale and without any oversight or transparency.
There is only one way to safeguard Americans’ privacy — legislation that clearly states the “exclusive means” by which the government can acquire such information about Americans.
Given the rapid expansion of the surveillance state, now is the time for a robust public debate about government snooping on Americans without statutory authorization or judicial review. In line with the above principles, any discussion of surveillance reform should:
Indeed, surveillance sometimes takes place without any statutory authority at all. While FISA regulates government surveillance of Americans and others inside the United States, the government relies on Executive Order 12333 for much of the surveillance it conducts overseas. Even though surveillance conducted under EO 12333 increasingly collects Americans’ information, that executive order has none of the safeguards present in FISA, essentially giving the government a free hand.
Intelligence and law enforcement agencies also regularly circumvent Americans’ Fourth Amendment rights by purchasing their most private and sensitive data from data brokers. Even the FBI recently admitted to having purchased Americans’ sensitive geolocation information — information that should require a warrant to obtain, according to the Supreme Court. All we really know is that this practice of buying Americans’ data is spreading rapidly among federal agencies.
These agencies continue to deploy new and invasive surveillance technology, such as stingrays and facial recognition technology, at scale and without any oversight or transparency.
There is only one way to safeguard Americans’ privacy — legislation that clearly states the “exclusive means” by which the government can acquire such information about Americans.
Given the rapid expansion of the surveillance state, now is the time for a robust public debate about government snooping on Americans without statutory authorization or judicial review. In line with the above principles, any discussion of surveillance reform should:
- Require a warrant or FISA Title I order (a probable-cause order that the government must obtain from the FISA Court to conduct surveillance of Americans in foreign intelligence cases) to search for Americans’ communications and other Fourth-Amendment protected information, no matter how or where it was collected;
- Bolster judicial review provisions, including by removing artificial barriers to that review and strengthening non-government voices in proceedings;
- Establish legislative safeguards and judicial oversight for surveillance that currently occurs without statutory authority whenever it impacts the privacy of people in the United States; and
- Codify reasonable limits on the scope of surveillance and finally ban bulk collection.
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