Sens. Rand Paul and Ron Wyden Unveil Long-Awaited, Privacy-Protecting Surveillance Reform Bill

The Fourth Amendment matters to some legislators.


Sen. Rand Paul
Tom Williams/CQ Roll Call/Newscom

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:

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  1. I’d like to tack on a rider to that bill. $30 million of taxpayer money to support the perverted arts.

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  2. In short, Burr’s legislation would amp up the government’s domestic surveillance powers with little oversight and would shred Americans’ Fourth Amendment rights.

    More than what one would think the Constitution permits.

    1. Sadly, the constitution permits whatever the Supreme Court says it permits.
      So if this madness continues, and the SC says it’s OK, then it’s OK.
      Or if the SC doesn’t say anything, it’s OK.

      This is no different than asset forfeiture.

      Besides, in this case, they could just nationalize Facebook and Twitter, and have the same information and more – – –

  3. Wasn’t it Feinstein who, immediately after Snowden spilled the beans, wanted to put an end to the NSA’s illegal spying by the simple expedient of declaring everything the NSA did completely legal? And now this Burr shithead wants to expand their power plus shield it from judicial review. Christ, what an asshole.

    1. And of course a Justice Bork would have been unable to find anything in the Constitution that prohibits the government from doing this so he would have wished the bill Godspeed. Glad that asshole’s rotting in Hell.

  4. Back in my day Donald Trump was going to lead the fight to dismantle the deep state.

    1. Great, here’s a bill he can get behind. Right?

    2. February 30th?

  5. You mean this bill is more important than, say, what’s going on in the “Twitterverse”?

    Cue the “what do you have to hide” useful idiocy.

  6. A warrant requirement is like a five minute delay.

    1. If you actually have probable cause. They don’t want have to deal with things like that before tapping phones and spyware my on people.

      1. Both statements are true, depending upon the jurisdiction and judge. But there’s an easy way around all that warrant nonsense – outsource to ‘civilian side operators’ via PMCs and PICs with little to no oversight. Many of these guys are former seasoned cops or military with the connections and tradecraft to remain covert. Especially when police intelligence units provide cover!

        You’re all familiar with “parallel construction,” right? Now take the Stasi tool bag and pump it full of steroids, and you’ll have a gist of the reality of the situation. Sneak n’ peek? No problem! Plant evidence, place a bug, or maybe conduct surreptitious druggings? Easy. It’s a very fine line between ‘cop’ and ‘criminal.’ Makes one wonder if privatization is always a good idea…at least the Feds have the courtesy to deny your FOIA requests with a flowery “fuck off” email!

  7. “Without common-sense protections for Americans’ liberties, this vast surveillance authority is nothing less than an end-run around the Constitution,”

    Even in support of an ideal I myself hold, I fucking hate that phrase. “Common-sense” is the ultimate weasel word.

    1. The very worst.

    2. The Venn diagram of common-sense, and legislators, is two circles. A foot apart.

  8. If only people cared about stuff like this, that actually matters, rather than Trump’s latest he-said/she-said spat and the Congress woman who does not speak English well and wears ridiculous hats.

  9. You shouldn’t need a law to make the government follow the law that rules how they are supposed to govern.

    1. Good point. Stand your ground, partner.

  10. RE: Sens. Rand Paul and Ron Wyden Unveil Long-Awaited, Privacy-Protecting Surveillance Reform Bill
    The Fourth Amendment matters to some legislators.

    Kudos to Paul and Wyden, who are apparently the last of the protectors of our beloved civil liberties, what’s left of them. Too bad we don’t have more like them.

  11. For the most part, we’d find a lot of what’s wrong with our system if we could repeal the Patriot Act. Using the word Patriot is a red flag for me; patriotism being the last refuge of scoundrels.

    The Patriot Act effectively removed five of our citizens’ rights per the Bill of Rights.

    Search for “continuation of government” laws and acts. Cheney and Rumsfeld really did a number on the nation with this piece of work. They’d been working on it together since the 70s and finally had an opportunity to enact it with the occurrence of 9/11.

    9/11 has been used to justify almost anything the governing assholes want that is not in the best interests of the citizens.

  12. 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.

    I hope Senator Burr gets Lou Gehrig’s disease.

  13. Mr. Shackleford;
    “They will debate the bill behind closed doors”? A bill to extend and expand the “powers” usurped by Congress for their spook organizations? How does Reason magazine even stand for something like this?
    Here is another question. How does Rand Paul still believe that legislation will even matter? He spent most of his adult life watching his father try to educate his fellow political hacks and the American people to the FACT that he could not vote for something, anything, that exceeded the authority and autonomy of the office! The “reason” he was called Dr. NO(!) was not because he didn’t like women, children, or minorities. It was because he recognized that the first 10 Amendments are rules/”laws” for the government on what they can NOT legislate, decree, or “rule” on! In other words, he honored his Oath of Office.
    When our happy legislators write and pass ,,, say,,, the “patriot act”. They are committing TREASON! They each swore or affirmed the Oath of Office. To abide by the Consitution AS WRITTEN,,, “so help me God”. It is fine to have another opinion and to use the bully pulpit to bleat it out. However, the Oath (a legal and binding contract. A CIVIL contract) means they must, by “the law” (the Common Law) and Constitutional Law, abide by their Oath.
    So Scott, ask Rand what’s up with that next time you talk to him. He won’t respond to my letters.

  14. But….but….Rand Paul supports Roy Moore.

  15. Guess Rand Paul is trying to get back in the good graces of the libertarians, after his whole Roy Moore endorsement debacle.

  16. Laws and constitutions are just words on paper, or electrons in cyberspace, or . . .

    If people are willing to allow the government to violate their privacy, the government will.

    If people demand that the government respect their privacy, and don’t back down, then privacy rights will have some meaning.

  17. Justin Amash is also a co-sponsor. He was initially left off the Wyden announcement).

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