Lawmakers Try To Insert Privacy Protections Into the Feds' Snooping Powers
The bipartisan Government Surveillance Reform Act would stop a lot of warrantless surveillance as a condition for renewal of Section 702 authorities.
A bipartisan collection of privacy-minded lawmakers today announced the introduction of a bill that would reform and restrain the authorities of federal agencies from snooping on American citizens and collecting data without getting a warrant first.
Federal surveillance authorities under Section 702 of the Foreign Intelligence Surveillance Act (FISA) are up for congressional renewal this year. Section 702 is intended to authorize the warrantless surveillance of foreigners outside of the United States for potential threats to national security. But in truth, through various loopholes and tricks, these authorities have been used by the federal government to collect and track domestic data and communications by American citizens, without us knowing and without warrants.
We've had years of evidence that federal intelligence authorities like the National Security Agency (NSA) have been misusing their powers and a number of legislative attempts to rein them in. Today, a pack of lawmakers introduced the Government Surveillance Reform Act of 2023, intended to add several new restrictions to protect Americans from warrantless snooping and collection of data as a condition of renewing Section 702.
The law is co-sponsored in both the House and Senate by privacy- and liberty-minded lawmakers from both parties, from Sen. Ron Wyden (D–Ore.) and Rep. Zoe Lofgren (D–Calif.) on the left to Sen. Mike Lee (R–Utah) and Rep. Nancy Mace (R–S.C.) on the right, among others.
"The FISA Court and the Director of National Intelligence have confirmed that our government conducted warrantless surveillance of millions of Americans' private communications," said Lee in a prepared statement. "It is imperative that Congress enact real reforms to protect our civil liberties, including warrant requirements and statutory penalties for privacy violations, in exchange for reauthorizing Section 702. Our bipartisan Government Surveillance Reform Act stops illegal government spying and restores the Constitutional rights of all Americans."
Their bill addresses and attempts to end a host of different ways that federal authorities have attempted to make end runs around the Fourth Amendment's requirements that officials get a warrant before accessing Americans' private data or communications. Some of the important reforms include:
- Ending the "backdoor search" loophole. The massive collection of data authorized by FISA has created a trove of stored info that the FBI has accessed to investigate domestic crimes, even though that data was collected without warrants for the alleged purpose of protecting us from foreign spies and terrorists. The power of the FBI to do so was actually expanded under President Donald Trump (in spite of his anger over being subjected to secret surveillance). The Government Surveillance Reform Act would close this loophole by requiring authorities to get a warrant before searching citizens' data.
- Ending "reverse targeting" of Americans in foreign surveillance. One clever bypass federal snoops have used to listen in on Americans' communications without having to get a warrant has been to target foreigners overseas those Americans talk to instead. When FISA authorities allow the NSA to wiretap foreign targets, they will have access to all sides of the communication, and that includes Americans whom under normal situations they would not be able to snoop on so secretly, thanks to the Fourth Amendment. This bill would prohibit such targeting without consent and prevent the use of data gathered this way in court proceedings.
- Ending the authority for surveillance "about" U.S. citizens. Another way the feds secretly spy on us is by collecting data and communications that are "about" us that come from valid foreign FISA surveillance targets. In other words, the feds can tangentially snoop on specific Americans by warrantlessly collecting communications from foreign sources that mention them. This bill would end that practice.
- Ending purchases of private data from third-party brokers. In order to bypass warrant and Fourth Amendment requirements to gather private information about Americans, government agencies have been turning to third-party data brokers who compile information from our use of phones and computers. Government agencies simply buy data that we have stored through third-party sources that they would not be allowed to access on their own without a warrant or subpoena. This bill would prohibit such purchases.
And there's more to the full bill, which can be read here. It is chock full of changes to surveillance authorities that some lawmakers have been trying to pass for years now, in exchange for a four-year renewal of Section 702.
As such, the bill also has support from civil rights and privacy groups from across the political spectrum, including the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation, the National Association for Criminal Defense Lawyers, FreedomWorks, Restore the Fourth, the Due Process Institute, and many others.
"We have said again and again that Section 702 should not be reauthorized absent fundamental reforms, said Kia Hamadanchy, a senior policy council at the ACLU, in a prepared statement. "The Government Surveillance Reform Act meets this high standard. This legislation would address the countless abuses of Section 702 we have seen from the government, and it would ensure the protection of Americans' Fourth Amendment rights. Congress should not vote to reauthorize Section 702 without the critical reforms contained in this bill."
