Lawmakers are proposing reforms to a key foreign surveillance program used to monitor terrorists and disrupt their plots ahead of its December expiration.
The proposed bipartisan changes come amid a Trump administration push for a clean, permanent renewal of Title VII of the Foreign Intelligence Surveillance Act (FISA). Officials have focused especially on Section 702, which governs the surveillance of non-U.S. persons abroad for a foreign intelligence purpose, such as counterterrorism or counterproliferation.
The bill tries to address long-standing concerns from civil liberties advocates as well as fresh anxieties from some Republican lawmakers. It is expected to be introduced this week by top members of the House Judiciary Committee.
“The program must be reauthorized with reforms to better safeguard Americans’ civil liberties and strengthen national security,” said House Judiciary Chairman Bob Goodlatte on Thursday, whose panel has primary jurisdiction over 702 renewal. Goodlatte said he expects strong bipartisan support for his bill, called the USA Liberty Act.
“We must make these reforms if we are to convince a critical mass of our colleagues that Section 702 should be reauthorized at all,” said Ranking Member John Conyers, a cosponsor of the legislation.
Though 702 monitors foreigners overseas, the surveillance target sometimes communicates with Americans, and both sides of the communication get swept up, resulting in what is called “incidental collection.” That’s where privacy concerns about 702 come in.
An increasing number of Republicans have raised alarms in recent months about the abuse of surveillance for political purposes, including improper unmasking of Trump transition officials and leaks of classified intelligence. The USA Liberty Act addresses those concerns with reforms related to unmasking, or the process of revealing a U.S. person’s name in an intelligence report.
Officials will be required to document their unmasking requests and to certify that they are made only for legitimate purposes, as reported by TWS earlier in September. Another section of the law requires the Director of National Intelligence (DNI) to report to lawmakers on the number of unmasking requests and the number of Americans who are unmasked. In addition, the legislation increases the penalty for mishandling classified information.
The bill also seeks to address a range of long-standing civil liberties concerns. That includes so-called “backdoor” searches, or when an agency queries 702-acquired data using a term like an American’s email address, known as a U.S. person identifier.
Some privacy advocates have said that a warrant should be required for such queries, and have raised special alarm about the FBI’s access to 702-acquired information during criminal investigations. Law enforcement officials have warned that a warrant requirement would slow investigations and erect walls between intelligence and criminal probes.
The legislation attempts a compromise on queries for criminal probes: It allows an analyst to conduct a U.S. person identifier query, but requires the agency to obtain a court order based on probable cause to read or disseminate any responsive information.
The USA Liberty Act also codifies the end of a controversial type of intelligence collection known as “about,” which swept up communications that merely mentioned a target rather than being to or from a target. The NSA announced that it was ending about collection in April. Under the new legislation, lawmakers would have the option to allow about collection again when 702 lapses in six years.
In addition, the bill seeks to strengthen procedures used to ensure surveillance targets are foreigners outside of the United States, and boosts oversight by requesting a range of data from the DNI related to incidental collection on Americans.
In the Senate, a contingent of Republican lawmakers are pushing for a clean and permanent renewal of 702. A House aide on Wednesday described a clean 702 renewal in the lower chamber as “terribly unlikely.”
