Senator Wyden's 702 Reform Bill Would Limit Backdoor Searches, Permanently Kill 'About' Collection

from the incidental-permadeath dept

As promised, Ron Wyden (along with Rand Paul) has delivered an antidote to the Senate Intelligence Committee's completely terrible Section 702 "reform" bill. That bill, authored by Sen. Burr, would extend the NSA's 702 powers until 2025 while allowing US law enforcement to use collected intelligence for normal law enforcement purposes. It also would have turned the NSA's "about" collection back on, provided no one opposed it with directly-targeted legislation. This program's ability to "inadvertently" sweep up US persons' communications was so concerning the NSA voluntarily shut it off. (It asked to have it turned back on less than two months later, however.)

Charlie Savage of the New York Times has published the latest draft of the Wyden reform bill, titled the USA RIGHTS Act of 2017. (His annotated version of the bill can be found here.) Wyden's bill [PDF] makes several significant changes, including codification of the NSA's voluntary "about" collection shut down.

Beyond preventing the NSA from resuming a collection it has abused since inception, the bill also shortens the extension period to 2021, ensuring the next debate over Section 702 collections isn't put off for nearly a decade. (The Burr bill extended the sunset to 2025. The House Subcommittee's lukewarm reform bill set it at 2023.)

It also would attempt to close the "backdoor search" loophole that allows US government agencies to obtain domestic communications without a warrant. Wyden's bill adds a warrant requirement for these searches -- including those with a national security purpose. This serves two purposes. First, it brings the collection of domestic communications via NSA surveillance back in line with the Fourth Amendment. Additionally, it provides for better accountability by ensuring any database searches leave a paper trail. It also bans the acquisition of content "known to be entirely domestic."

The bill also provides for better notification of prosecutors' use of Section 702-derived evidence. It limits the use of Section 702 surveillance to national security cases, with one exception: direct approval from the Attorney General. The new notification requirements will attempt to circumvent parallel construction by preventing the government from withholding notification if there is any other conceivable way it could have obtained the same evidence (inevitable discovery, normal law enforcement surveillance methods, etc.).

It also adds further reporting requirements, including mandatory production of numbers Wyden has been seeking for years: incidentally-collected US persons' communications. It would also require the FBI to turn over the number of US persons queries it performs using NSA-collected intel.

There are other good aspects to the bill -- stuff normally not discussed during surveillance authority sunsetting. The bill would divest the power currently held by Chief Justice John Roberts. Chief justices have controlled FISA court judge selection for most of the last 30 years, resulting in a long stream of conservative picks, many of them former government prosecutors. This bill would allow all 13 circuits to nominate judges for FISC posts, which should help prevent future FISA judge picks from being so closely aligned with the Chief Justice's views.

Finally, the bill also provides for additional Privacy and Civil Liberties Oversight Board input. The PCLOB is all but dead, but if it's revived, it would have access to Intelligence Community whistleblower complaints.

This is the best reform bill we've seen offered yet. But the clock continues to tick down to 702's renewal. Chances are, Sen. Burr's control of the Senate Intelligence Committee isn't going to do much to ensure this bill moves forward intact, if it moves forward at all. Between Burr and Sen. Feinstein, the oversight committee has been internally limited in terms of actual oversight. Wyden's presence on the committee is the wild card, but entrenched powers continue to limit his effectiveness. Hopefully, some of this bill will replace the worthless, toothless "reforms" proposed by Sen. Burr and continue to nudge the Intelligence Community towards compliance with a number of Constitutional amendments.

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Filed Under: about collection, backdoor searches, nsa, rand paul, reform, ron wyden, section 702, surveillance