from the protecting-all-Americans-vs.-protecting-career-politicians dept

As is the case any time surveillance powers are up for renewal, there’s always a chance to reform them. Most of these efforts tend to get derailed by a majority of legislators who just want to push things through before any lively discussion takes place. Every so often, legislation is passed that modifies authorized powers after the fact.

Despite the fact that declining to renew the powers is always an option, this is a route that has never been taken. Even with plenty of Republicans pushing to severely restrict Section 702 for purely political reasons, no one seems to have the guts to state “Hey, we’re just not going to do this any more.”

But as the clock winds down on the year, nudging everyone closer to voting on a reauthorization, competing reform bills have been brought forward by two different House committees. But one is reform in name only. The other contains actual reforms.

The House Intelligence Committee is pitching a set of reforms that barely contain any reform. Of main concern to most privacy activists and privacy-focused legislators is the FBI’s warrantless access to US persons’ info via Section 702 collections. The FBI has constantly abused this power to turn a foreign-facing NSA collection into a domestic surveillance tool.

The Intelligence Committee’s bill (H.R. 611 [PDF]) reforms hardly anything. It codifies voluntary policy changes enacted by the FBI to limit its own abuses. The only warrant requirement is in cases involving criminal investigations, which is an extremely small subset of FBI backdoor searches.

Rather than protect all Americans from warrantless searches by the FBI, the Intelligence Committee’s bill would only protect the Americans they respect the most: themselves and those similarly situated on Capitol Hill.

The bill also includes numerous provisions that would further protect members of Congress or other high-profile officials, including requiring a lawmaker’s consent before gathering information for a “defensive briefing” about a lawmaker being targeted by a foreign entity. It also requires the FBI to notify a member of Congress, with some limitation, if they have been queried in the 702 database. 

These provisions were prompted by the FBI’s (extremely questionable) search of Page’s communications via its 702 powers, as well as notifications received after the fact by other Republican leaders who’d had their communications searched, if not accessed, by FBI analysts.

Not only does it provide a path for (nearly) clean reauthorization of these powers, it extends access to the NSA’s 702 collection to border security agencies to allow them to vet asylum seekers by pawing through any communications they might find in this collection. The FBI spent years abusing this authority to engage in warrantless surveillance. If anyone thinks the ICE, CBP, and other DHS components won’t be just as willing to abuse this access, they’re clearly delusional.

It also expands the definition of “electronic communication service provider” to include “equipment.” This means 702 can be used to sweep up data and content that isn’t housed or transmitted by traditional service providers, like email services or internet providers. With this expanded definition, the only limit is the government’s imagination.

Greg Nojeim, director of the Center for Democracy and Technology’s (CDT) Security and Surveillance Project, called HR 6611 a “Trojan Horse” and warned it would actually expand surveillance powers.

“This Trojan Horse would take FISA 702 orders beyond the realm of communication services (like email and messaging providers) and pull in anyone who could access equipment on which communications might be sent or stored,” Nojeim said on Friday.

“This could include data centers that merely rent out computer space, hotels and Airbnb owners, and even the local library or coffee shop. Including this provision would seriously impact American businesses far outside the communications and tech sector.”

Fortunately, the House Judiciary Committee has its own proposal — one that actually includes meaningful reforms. H.R. 6570 [PDF] introduces an actual warrant requirement for all searches involving US persons, no matter which agency is performing the search. As the Brennan Center’s Elizabeth Goltein explains on Elon Musk’s Internet Hate Machine Twitter X, the Judiciary’s bill folds in other surveillance reform acts, including Senator Wyden’s “Fourth Amendment Is Not For Sale Act,” which would require warrants to obtain cell location data from data brokers.

Unfortunately, it’s unlikely either of these efforts will move forward any time soon. (Hopefully, the Intelligence Committee’s bill will never move forward.) There’s already an agreement in the works to push off the renewal until next April to ensure Section 702 doesn’t expire while it’s still under (heated) discussion.

Not that this punting of the problem until next year is making anything less contentious.

Speaker Mike Johnson (R-La.) is taking heat from the hard-right conservative wing of his conference over the addition of a short-term extension of the nation’s warrantless surveillance powers in the Defense authorization bill. 

The Republicans that simply want the FBI to leave Republicans alone aren’t happy their reform efforts are being put off. The bipartisan Judiciary Committee isn’t thrilled its reforms — which are actual reforms — are being backburnered. And then there are surveillance hawks that firmly believe putting off renewal for any reason is going to set us up for another 9/11.

Johnson has faced significant lobbying on the matter by leaders of the House Intelligence Committee. Rep. Jim Himes (D-Conn.), the top Democrat on the panel, was spotted speaking with Johnson on the House floor earlier this week.

“You can air drop the whole reform bill into the NDAA. And you know, he decided not to do that. OK, that’s fair. But what you can’t do is not have a temporary extension. Because the next likely vehicle for reauthorization is the Jan. 19 successor to the [continuing resolution]. So just that alone is a potential 19-day, no-702 period, which is the period in which Americans get killed,” Himes told The Hill on Tuesday.

Filed Under: 702 reform, fbi, house intelligence committee, nsa, section 702, surveillance