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New Surveillance Bill Would Dramatically Expand NSA Powers

NSA Cabinet
NSA Cabinet
Neema Singh Guliani,
Former Senior Legislative Counsel,
American Civil Liberties Union
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November 30, 2017

The USA Patriot Act, passed hurriedly after 9/11, taught us that rushing a surveillance bill through Congress is a bad idea, producing complicated statutes ripe for abuse. Yet the leadership of the House Intelligence Committee is taking a page out of President George W. Bush’s playbook and trying to do just that.

Tomorrow, the committee will debate a bill that dramatically expands NSA surveillance authorities, including one that is scheduled to expire at the end of the year. The bill was publicly released just last night, giving members of the committee and other legislators less than 48 hours to try to understand the complex proposal.

Perhaps hoping no one has time to closely read the “FISA Amendments Reauthorization Act of 2017,” sponsors have pitched the measure as one that makes key changes to intelligence authorities to “protect Americans’ privacy rights.” The truth, however, is that it does the exact opposite.

This is why the ACLU, joined by over 30 organizations from across the political spectrum, is urging members of Congress to oppose the bill. Here are some of the reasons we’re fighting this legislation.

It could be used to allow more unconstitutional surveillance that targets Americans and foreigners.

Several existing surveillance law provisions allow the government to spy on individuals for foreign intelligence purposes, provided the government has cause to believe they are a “foreign power” or “agent of a foreign power.” This includes individuals acting on behalf of a foreign government, terrorist organization, or foreign political organization. The intelligence bill expands the definition of these terms to include individuals or entities engaging in a wide array of so-called “malicious cyber” activities. This broad term could be used by the government to surveil people who may only be tangentially connected to computer crimes, even without evidence to show they intended to commit a crime.

The bill could extend bulk surveillance under Section 702.

Section 702, the controversial spying law set to expire at the end of the year, should be meaningfully reformed or allowed to sunset. Instead, this bill extends Section 702 for four years and includes language that suggests the government can use the provision to go beyond human targets to also target “a facility, place, premises, or property.” This could be read by the government to allow broad surveillance of, for example, entire facilities or popular internet services like Tor, used by millions of people.

The bill could be interpreted to codify illegal surveillance practices.

The government uses Section 702 to engage in a host of illegal practices — many of which the public courts have had little to no opportunity to fully examine. For example, the government has wrongly asserted that it can use Section 702 to collect communications that are not to or from a target, but merely “about” a target. That includes wholly domestic communications. After several instances where the government failed to comply with its own policies, raising Fourth Amendment problems identified by the secret intelligence court that oversees this surveillance, the NSA announced it would temporarily halt this practice in April.

This bill would permit “about” collection to be restarted following approval of the intelligence courts. Once approved, the bill provides one month for Congress to pass a new law preventing the practice from restarting —a time period so short that the government would likely have ample opportunity to claim congressional approval of this surveillance simply as a result of inaction.

The government could interpret the bill to allow criminal prosecutions based on evidence acquired without a warrant.

Despite the fact that Section 702 prohibits the targeting of Americans, the government claims that it can search through the data swept up under the law for information about citizens, exploiting what has commonly been referred to as the “backdoor search loophole.” Instead of reforming this practice by adopting bipartisan proposals to require a warrant before performing backdoor searches, the bill would place no restrictions on when the government can search through these databases and will likely be used by the government to claim that Congress has legalized this troubling practice.

Even more, the bill contains language that permits information searched or accessed without a probable cause warrant to be used for any purpose, including criminal prosecutions. Thus, individuals who have their information swept up under Section 702 could have this information used against them for immigration purposes, to pressure them into becoming an informant, or even to criminally prosecute them for a minor drug crime.

The public should not be fooled by the House members who claim that this bill protects our rights — it does the exact opposite. And by rushing it through the legislative process, these members are trying to cut off debate that would show exactly how empty their claims are.

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