Almost a decade after Get FISA Right was born, Section 702 of the FISA Amendments Act is once again up for reauthorization. FISA provides the legal basis for warrantless surveillance, and when it was originally passed over strenuous objections from civil libertarians in 2008, it included a “sunset clause”. After being extended once in the lame-duck session in late 2012, Section 702 will sunset if it’s not reauthorized again by the end of the year.
Stop Watching Us demonstration in DC, 2013, photo from the Daily Mail
As usual, the White House is pushing for a “clean reauth” — extending the provisions without any further reforms. As usual, civil libertarians across the political spectrum are pushing for reform. As usual, the government is saying they can’t even count how many Americans are swept up in target coverage. As usual, Ron Wyden is concerned and speaking out.
But there are some big differences this time around.
For one thing, the President is using his bully pulpit to claim (without giving any evidence) that he’s been wiretapped, which whether or not it’s true certainly shines a spotlight on the potential for abuse. And there’s the drama around former National Security Advisor Gen. Michael Flynn, which makes the abstract discussions of “incidental collection” — where surveillance of foreigners leads to Americans’ conversations being collected as well — a lot more real:
U.S. intelligence agencies apparently picked up Flynn’s call as part of routine surveillance on Russian officials, and the contents leaked despite laws that normally mask the identities of Americans swept up by eavesdropping of foreign targets. Flynn resigned after the transcript showed he had misled people such as Vice President Mike Pence about his conversations with Russian Ambassador Sergey Kislyak.
The “incidental collection” of Flynn was a hot topic during the March 1 House Judiciary Committee (HJC) hearing. From EFF’s live blog:
Rep. [Raul] Labrador raised the question of whether such a vast surveillance system can have adequate safeguards to prevent abuse…. “Can we prevent them from using this personal information to settle [political] scores?” Labrador asked.
While refraining from commenting on the specifics of Flynn’s surveillance, the Brennan Center’s Liza Goitein said the potential for abuse is one of the problems with the law. “The statute is not narrow enough,” she said.
Why yes, now that you mention it, that potential for abuse is exactly the kind of thing that critics of the surveillance state have warned about all along.
If you haven’t been through one of those reauthorization battles before, it’s a long process. It typically starts with hearings in the House and Senate Judiciary Committees (like the March 1 hearing), and sometimes other committees as well. Some of these are open unclassified hearings where the testimony is public and intelligence agencies’ claims frequently fall apart under scrutiny; others are classified, which allows for discussion of more information and gives the agencies to try to frighten Congresspeople behind closed doors.
Then the process moves on to an initial bill, markup sessions, parliamentary maneuvering, open debate and dramatic speeches on the floor, filibusters, amendments, and multiple votes. Urgency increases as we get closer to the sunset mechanism’s looming deadline (sections of the law lapse on December 31 if they’re no vote) — which in turn often leads to short-term extensions. It’s like watching sausage getting made, although with a lot more scary headlines and phone calls to Congress.
If you’re having deja vu, you’re probably thinking about the Patriot Act reauthorization in 2015, where several provisions of the law briefly sunsetted before being restored by the USA Freedom Act. This year’s battle is likely to build on the transpartisan alliance that started coming together during the 2015 battle, where Republicans like Justin Amash, Thomas Massie, and Rand Paul fought hard on the side of civil liberties.
Sure enough, there was a fair amount of Republican skepticism at the March 1 HJC hearing — and not just from Rep. Labrador. Here’s another example, once again from EFF’s live blog:
Rep. Jim Jordan was skeptical of the intelligence community’s claim that it is difficult to come up with a long-promised estimate of how many Americans have had their communications collected under Section 702. “That seems like baloney to me,” the Ohio Republican said. “It’s the greatest intelligence service on the planet. You’d think they’d be able to know that.”
You’d think. It’s almost like they’ve intentionally constructed a system where they don’t know so they can hide the data. Then again maybe they’re just lying. Grr. FISA reauthorization is not good for my blood pressure.
Restore the Fourth, 2013, New York City
I recently had a chance to talk with one of the members of the HJC and his Legislative Director. They both thought that despite the administration’s initial proposal, there are good chances for significant reforms. And when I mentioned that there are a lot of people and groups who are ready to engage, they thought that’s it a time where grassroots activism can really have an impact.
Our friends in Restore the Fourth and Fight for the Future are ahead of the curve here, working with organizations like Access Now, ACLU, the Arab-American Institute, BORDC/Defending Dissent, EFF, Freedom of the Press Foundation, Campaign for Liberty, Calyx, Demand Progress and more on End 702. Smaller groups like the Montgomery County Civil Rights Coalition remain engaged. And we’ll be cranking things up with Get FISA Right as well …
Civil liberties issues have always cut across party lines, so the dynamics in 2017’s highly-polarized world should be particularly interesting. When the bills start to move forward and activists crank up “call your representatives!” campaigns, it might well be the first time Indivisible and the Tea Party find themselves on the same side of an issue — working with the Center for Media Justice, Cato Institute, the American Library Association, and other strange bedfellows. For the first time in years, the political winds may actually be aligning for surveillance reform. And there’s certainly a lot of grassroots energy out there.
So stay tuned for more! You can see what Get FISA Right’s up to by following us here or on Twitter, liking our Facebook page, or joning our Facebook group.`
Also published on Get FISA Right’s brand new Medium blog! Thanks to Maya for the feedback on an earlier draft!
Links
A Coalition Says to Congress: End 702 or Enact Reforms, Shahid Butter, EFF’s Deep Links blog, from June 2016, lays out the case for reform
White House supports renewal of spy law without reforms: official, Dustin Volz and Steve Holland, Reuters
Ron Wyden’s Complaints about Section 702 and Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection, Marcy Wheeler, Emptywheel
The House Judiciary Committee hearing
- the committee’s page, including links to testimony and a video.
- House Judiciary Committee considers reauthorizing Section 702 — cautiously, Angelique Carson, IAPP
- EFF’s Live Blog
Tapping Trump, Julian Sanchez, Just Security , a look at Trump’s claim that he had been wiretapped as well as BBC’s earlier report of a FISC order targeting Trump associates
Trump’s spying fixation gives surveillance critics unexpected boon, Cory Bennett and Martin Matishakm, Politico
Rand Paul Is Right: NSA Routinely Monitors Americans’ Communications Without Warrants, Glenn Greenwald, The Intercept
From Restore the Fourth in Washington DC, 2013,
Photo by Montgomery County Civil Rights Coalition
About Get FISA Right
We started in June 2008 as a group of Barack Obama supporters. In our first two weeks, we became the largest group on my.barackobama.com, wrote an open letter to Barack — and he responded. Progressive bloggers and the technology-in-politics crowd (Wired, Slashdot) fuelled our early growth; coverage in the traditional media included the Washington Post, the New York Times, CNN, and many others. After the FISA vote on July 9, we were early pioneers of crowdfunded grassroots cable TV-based activism, partnering with SaysMe.tv to produce and air two rounds of cable TV ads/YouTube videos at the Republican National Convention and during the Inauguration. In January 2009, we finished #5 in Ideas for Change in America with over 12000 votes, holding our own against ideas with sponsorship from non-profits and groups with huge mailing lists.
In September 2009, we sprang to life again as part of the debate about reauthorizing the PATRIOT Act, and since then have continued to reemerge for civil liberties battles. Now it’s 2017, and we’re back and getting ready for the next fight on FISA reauthorization!
Get FISA Right 
This just in from Demand Progress; I am taking the liberty of copying it verbatim:
Yesterday, members of Congress released a draft bill to continue government surveillance under Section 702. We were hoping it would contain strong reforms to keep our government from spying on us.
But the bill, the USA Liberty Act, doesn’t go far enough to protect us, and even worse, it contains a massively problematic loophole.
Sign the petition: Tell your House Rep we need stronger reforms in the USA Liberty Act.
Here’s what’s wrong with the bill:
It doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on US soil — all without a warrant. Instead, it okays collecting info for “a foreign intelligence purpose,” which is a loophole big enough to drive a truck through.
It doesn’t stop the Justice Department from using Section 702 information in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.
It doesn’t prevent “parallel construction.” Under this bill, law enforcement can still use information gathered under Section 702 (for national security purposes) to prosecute people for crimes that have nothing to do with national security, like non-violent drug charges, and then hide where the info came from.
It gives the NSA too many free passes. The bill adds transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports if they don’t feel like complying. And there’s no public oversight into how President Trump and Attorney General Sessions interpret the 4th Amendment.
Without stronger reforms to protect people living in the US from warrantless government surveillance, the USA Liberty Act doesn’t really protect our freedom.
Tell your House Rep we need more to protect Americans in the USA Liberty Act.
Thanks for taking action,
Reuben and the team at Demand Progress
Thank sallijane! I’ll try to get up a post this weekend with all the info …
[…] Back in April I wrote […]
[…] As is usually the case in these sunset battles, the administration has proposed making all the authorities permanent; civil liberties advocates have proposed significant reforms; and the likely outcome is somewhere in between. Of course, the impeachment hearings make it hard to predict what’s going to happen — how much energy does anybody have to spend on this? But as I wrote back in 2017 […]