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Statement on the FISA Amendments Reauthorization Act of 2017, H.R. 4478

The Reform Government Surveillance coalition has significant concerns with the FISA Amendments Reauthorization Act of 2017, H.R. 4478, as currently drafted. Unless changes are made to the bill, Reform Government Surveillance opposes this legislation.

Reform Government Surveillance continues to advocate for common sense legislation to reform Section 702 of the Foreign Intelligence Surveillance Act. While we recognize that Section 702 provides the intelligence community with valuable national security tools, we also believe that any reauthorization of this authority should include reforms that further protect the privacy of all our users, increase accountability, and promote government transparency.

Unfortunately, the bill does not meaningfully restrict the FBI from warrantlessly searching the content of Americans’ communications incidentally collected under Section 702. Instead, the bill provides that the FBI “may” seek an order from the FISA court before accessing the contents of Americans’ communications – but the bill does not require such an order. When combined with the broad exceptions in the legislation regarding the use of such information in criminal cases, these provisions provide little, if any, additional privacy protections.

The bill also fails to permanently codify an end to “abouts” collection by the government. After the FISA Court raised serious privacy concerns about the NSA’s collection of communications that were “about” – rather than “to” or “from” – a communicant, the NSA halted this program. Given the NSA’s acknowledgment that it is not able to conduct “abouts” collection in a way that adequately protects the privacy rights of all our users, Congress should make it clear in the law that the NSA cannot engage in such collection.

We are also concerned that the bill suggests that the government can target “a facility, place, premises, or property” for Section 702 surveillance. Such targeting would be broader than what is currently authorized by the statute, and is contrary to prior statements by government officials regarding the use of Section 702 “abouts” collection. In March 2014, for example, the General Counsel of the NSA stated to the Privacy and Civil Liberties Oversight Board that such collection was “selector-based, i.e. based on … things like phone numbers of emails.” The government should not be using Section 702 to target entire facilities, places, premises, or properties – and this bill should not include language that could be used to justify such targeting.

Finally, expanding the definition of “foreign power” and “agent of a foreign power” to include individuals and entities engaged in “international malicious cyber activities” is potentially overbroad and unnecessary. Importantly, changing the definition in Section 101 would affect not just Section 702, but also the scope of all the other surveillance authorities contained in FISA. Such an important change could significantly broaden the scope of government surveillance, and should be made only after extensive consultation with the appropriate stakeholders in industry and civil society. We urge the House Intelligence Committee to remove this provision so that such consultation can take place.

We look forward to working constructively with the House Intelligence Committee and others as Congress considers reauthorization of Section 702.

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