Senate Could Make It Easy for FBI to Spy on Teen Sexters, Black Lives Matter, and Other U.S. 'Criminals'

FISA reauthorization would majorly expand use of warrantless digital surveillance data against Americans.


John Holcroft IKON Images/Newscom

A bill under consideration in the Senate could drastically expand the National Security Agency's power to conduct warrantless digital surveillance and U.S. law-enforcement's ability to use the collected data against Americans.

The Senate Select Committee on Intelligence today will privately consider reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless snooping on foreigners outside the U.S. and anyone using Tor (something more than 400,000 Americans use daily) or VPN networks if their communications are deemed matters of national security. (Update: The committee voted 12-3 to advance the bill with few changes.) Section 702 has long been criticized for scooping up American communications in the dragnet, which can then be used by the FBI and local law-enforcement partners in domestic criminal proceedings.

Section 702 is set to expire on December 31. The draft reauthorization, sponsored by Senate Intelligence Committee Chairman Richard Burr (R-North Carolina), would extend it through 2025.

But like so many federal "reauthorizations," Burr's bill is actually a significant expansion of previously granted powers. The civil-liberties blog emptywheel called it a "domestic spying program."

Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, said Burr's bill would "allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge."

As written, law-enforcement agencies like the FBI can only use 702-collected information in domestic criminal-cases related to terrorism, espionage, or other national security matters. Burr's bill would approve sharing 702 data in eight other domestic offense categories, including "human trafficking"—a crime U.S. law-enforcement has broadened to include sexual exchange between consenting adults and any aid to undocumented immigrants—and sexting between teens.

Section 5 of the draft bill purports to restrict domestic law-enforcement use of 702 data. But it "is in reality a vast expansion of the uses to which Section 702 data" may be applied," emptywheel notes.

Law enforcement is barred from using any 702-collected communication "to, from, or which contains a reference to a United States person" in a domestic criminal proceeding against that person—unless the Attorney General determines that it "affects, involves, or is related to the national security of the United States" or any investigation involving death, kidnapping, serious bodily injury, destruction of critical infrastructure, "cybersecurity," transnational crime of any sort (with special emphasis on narcotics trafficking), human trafficking, and a wide array of offenses against minors (including solicitation for sex, solicitation for prostitution, production or possession of child pornography, and distribution of sexually explicit material containing a minor, the federal offense used to go after teen sexters).

Any such determination made by the Attorney General would not be subject to judicial review.

This means "Jeff Sessions could decide tomorrow that [the DOJ] can collect the Tor traffic of [Black Lives Matter] or [pro-Palestine] activists, and no judge can rule that's an inappropriate use of a foreign intelligence program," writes emptywheel.

Some U.S. lawmakers are proposing Section 702 reforms designed to safeguard American communications from these digital dragnets. In the House, there's the USA Liberty Act of 2017, which "would require a court order to get access to [American] communications, unless the requests for access involve investigating terrorism or espionage," as Reason's Scott Shackford explained earlier this month. It would "narrow the 'backdoor' the government has used to snoop on Americans without warrants, but it doesn't close really close it."

In the Senate, a bipartisan crew led by Sens. Rand Paul (R-Kentucky) and Ron Wyden (D-Oregon) just announced a bill to require a warrant for data on Americans surveilled under the program; the text of that legislation has not yet been released, but a summary is available on Wyden's website.

NEXT: When Judicial Restraint Trumps the Second Amendment

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  1. If it saves even one American child from white slavery!..

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      1. Wow, that’s great, just as long as you’re not hiding your location. Speaking of which, they should use this against the “satirist” trolls too. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “parody” case? Let’s do what we can to limit the impact of inappropriate “viewpoints” like this one:…..s-scholar/

  2. Remember, we’re supposed to be upset that Trump and the Senate aren’t friends.

    Republican Senators, by and large, are fucking terrible.

    1. Your buddy Trump supports this bill.

      1. Trump supports a lot of openly asinine things.

    2. Indeed. One of the better ones announced yesterday he’d had enough and the GOPeons in this State are all giddy.

  3. “Rogers, why does your surveillance of human traffickers require so much Kleenex?”

    1. Because it’s so sad, duh.

  4. Imagine a worst case scenario for individual rights and I wager that is exactly what they will do.

    1. I suspect this measure when gain bipartisan support as both political parties are chomping at the bit to use FISA to spy on each other and leak information during elections. Both parties rank and file know the dangers to themselves, but the potential payoff for the party outweighs their personal concerns I suspect.

      1. *will gain bipartisan support…

  5. I think I remember the only reason courts even allowed this exemption to the warrant requirement was because Terrorism was really, really, really scary, we’re only looking at foreigners in terrorism investigations and this was war.. I’m pretty fucking sure the courts said these things in their opinions.

    1. I knew the anti-paid consensual sex lobby had won the moral panic war the day police and politicians changed:

      We must ignore the Constitution to win the war on Terrorism and Human Sex Trafficking


      We must ignore the Constitution to win the war on Human Sex Trafficking and Terrorism.

      They always include the word “Human” so you do not get confused it with the equally deadly war that is “Pig Sex Trafficking.”

      “would require a court order to get access to [American] communications, unless the requests for access involve investigating terrorism or espionage,”

      That’s a nice start, but let’s not kid ourselves into believing getting a court order in this day and age is some high bar:

      Sheriff numb-nuts: “Hey Judge Berns, we need a court order for an investigation”

      Judge Berns: “Will we be issuing this one under human sex trafficking or terrorism? As you know, we have discontinues the use of broad warrant sweeps under “drug trafficking” for caring small amounts of marijuana.”

      Sheriff numb-nuts: Not sure what we are fishing for. Tell you what, just leave that part blank and we can fill it in after the arrest based on what we find.”

      Judge Berns: “Sounds good. Want me to add a email gag-order on this open ended warrant as a chaser.”

      Sheriff nub-nuts “sounds good, see you in a few days after we invent our crime.”

    2. and… drugs.

  6. If you can’t trust Jeff Sessions’ judgement whose judgement can you trust?

    1. I agree. I mean, there are Americans he hasn’t punished yet.

  7. RE: Senate Could Make It Easy for FBI to Spy on Teen Sexters, Black Lives Matter, and Other U.S. ‘Criminals’
    FISA reauthorization would majorly expand use of warrantless digital surveillance data against Americans.

    Aren’t you glad the Thought Police are working hard to destroy all our civil liberties?
    Otherwise, we would have a free country.
    No ruling elitist turd would want that to happen.

  8. The US Senate is filled with DOM.

  9. I mean, it’s always a catch 22 isn’t it? By exposing the ‘bad guys’ to surveillance the government is inadvertently destroying the concept of privacy for its law-abiding citizens too. Curious to know how the government could spy on VPN users since the whole reason behind using a VPN in the first place is anonymity. My ExpressVPN app is made to freeze my network if my info is public, so how the hell could the government still spy on me?

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