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.
November 30, 2017
