In this corner, Sen. Richard Burr (R–N.C.), head of the Senate Intelligence Committee, wants to expand the feds' ability to snoop on citizens without a warrant. In this corner, Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) want to significantly restrain the federal government from accessing information collected without warrants.
Let's fight it out.
At issue is Section 702 of the Foreign Intelligence Surveillance Act, which establishes some of the rules for federal intelligence agencies when they snoop on the communications of foreign targets on foreign soil. This process has been subject to abuse: Surveillance of a foreign target can give investigators access to communications by American citizens, and the FBI has conducted "back door" searches of those stored communications to fight purely domestic crimes. All this happens without a warrant and without citizens even knowing their communications have been collected.
Section 702 expires this year, so lawmakers now must either renew it or allow it to sunset entirely. Hence the dueling bills in the Senate.
Burr's draft bill, which apparently will be debated behind closed doors today, not only renews Section 702's current set of federal powers for the next eight years; it expands them, and it formalizes some of activities that privacy and civil liberties groups are most concerned about.
Burr's bill would formally authorize the FBI to use information from communications collected without a warrant for a list of wholly domestic crimes. These include various violent offenses, kidnapping, crimes against minors, pretty much anything related to "cybersecurity," any transnational organized crime, sex trafficking, and anything "related to the national security of the United States." Furthermore, if the attorney general determines that a crime qualifies as part of this list, the bill declares that this decision will not be subject to judicial review. Reason's Elizabeth Nolan Brown blogged earlier some of the concerns about how this surveillance will be used domestically.
Burr's legislation would also restore what's known as "about" searches and communication collections. These have typically been described as allowing surveillance of communications to or from a foreign subject, but in fact the feds were also collecting communications that were simply "about" a foreign subject. (Hence the name.) This controversial practice was halted earlier in the year, as it was drawing in all sorts of communications that the FBI and National Security Agency (NSA) should not have had access to. Burr's bill would legally allow for these "about" searches unless Congress formally passes legislation forbidding it.
In short, Burr's legislation would amp up the government's domestic surveillance powers with little oversight and would shred Americans' Fourth Amendment rights. The good news is that the bill is very unlikely to become law, thanks to a bipartisan push to restrain surveillance authorities.
Paul and Wyden's bill would do pretty much the opposite of Burr's: It would roll back the NSA and FBI's ability to secretly, warrantlessly collect, access, and use communications from American citizens or from people on American soil.
Their bill is titled the "Uniting and Strengthening America by Reforming and Improving the Government's High-Tech Surveillance Act of 2017"—the USA RIGHTS Act. It would restrain the feds' ability to acquire or access American citizens' communications and to use the information as evidence in court. It would prohibit "reverse targeting"—the practice of snooping on foreign targets as the law permits, but with the real motive of listening to the Americans communicating with them.
The USA RIGHTS Act includes some exceptions to the demands for warrants, but unlike in Burr's bill they're limited to terrorism, espionage, or a threat to the government. The bill even gives citizens a foundation to claim injury in a civil court action to challenge surveillance if they have reasonable grounds to believe their communications have been collected. The legislation also calls for the NSA to estimate and report how many Americans have been surveilled through Section 702's authorities.
Wyden and Paul's bill has support in the House, where a bipartisan companion bill has been introduced by Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), and Beto O'Rourke (D-Texas) (UPDATE: Republican Michigan Rep. Justin Amash is also a co-sponsor. He was initially left off the Wyden announcement). In the Senate, Paul and Wyden have the support of Bernie Sanders (D-Vt.), Elizabeth Warren (D-Mass.), and Tom Udall (D-N.M.), among others. Paul so far is the only Republican senator on board, but the GOP may be more receptive in the House, where the conservative House Freedom Caucus has declared that it does not want Section 702 reauthorized without some serious reforms to protect Americans from unwarranted snooping.
In a press release this morning Paul and Wyden summed up their reasons for introducing the bill:
"Without common-sense protections for Americans' liberties, this vast surveillance authority is nothing less than an end-run around the Constitution," Wyden said. "Our bill gives intelligence agencies the authority they need to protect our country, but safeguards our essential freedoms with new provisions requiring judicial oversight and pushing back on the creeping expansion of secret law."
"Congress must not continue to allow our constitutional standard of 'innocent until proven guilty' to be twisted into 'If you have nothing to hide, you have nothing to fear.' The American people deserve better from their own government than to have their Internet activity swept up in warrantless, unlimited searches that ignore the Fourth Amendment. Our bill institutes major reforms that prove we can still protect our country while respecting our Constitution and upholding fundamental civil liberties," said Sen. Paul.
Dozens of civil liberties groups are also backing the bill. Neema Singh Guliani, legislative counsel for the American Civil Liberties Union (ACLU), endorsed it in a prepared statement:
The bill introduced today by Sens. Paul and Wyden is a significant step forward in the fight to reform Section 702 to protect Americans' constitutional rights. Importantly, it would close the so-called 'backdoor search loophole' that allows the government to search Section 702 data for information about individuals in the U.S. without a warrant. It would also put a stop to the illegal practice of collecting communications that are not to or from a surveillance target.
Section 702 has been abused by our government for years to spy on individuals without a warrant in violation of the Constitution. This bill rightly recognizes that no president—Democrat or Republican—should have such power.
And from the more conservative/libertarian end of the spectrum, here's Jason Pye, vice president of legislative affairs for FreedomWorks:
The Fourth Amendment enshrines Americans' right to be free from warrantless searches, but intelligence agencies are constantly violating our privacy. The USA RIGHTS Act is the necessary minimum set of reforms to merit reauthorization of Section 702 and ensure that Congress and the intelligence community are respecting our civil liberties.
These are not the only two bills floating around that would renew Section 702. Earlier in the month, members of the House's Judiciary Committee released a "compromise" draft bill, the USA Liberty Act. (Good luck trying not to confuse it with the USA RIGHTS Act!) It would place more restrictions on Section 702 surveillance of American citizens than currently exists and would certainly be preferable to Burr's bill. But it doesn't provide the same level of protection as Wyden and Paul's proposal, and it would still provide many ways for the FBI and NSA to snoop on American citizens without warrants.
You can download and read the text of the USA RIGHTS Act here.
Below, ReasonTV argues that we could simply let Section 702 expire: