Thrown last-minute into a torrent of competing legislation, a new bill meant to expand the NSA’s broad surveillance powers is the most recent threat to American privacy. It increases who is subject to surveillance, allows warrantless search of American communications, expands how collected data can be used, and treats constitutional protections as voluntary.
The bill must be stopped immediately. There is little time: despite the bill’s evening release yesterday, November 29, a committee is scheduled to markup the bill tomorrow, December 1.
The bill is called the FISA Amendments Reauthorization Act of 2017, and it was introduced by Rep. Nunes (R-CA), the Chair of the House Permanent Select Committee on Intelligence. It shares the same name as another bill introduced in the Senate in October.
Both bills are attempts to reauthorize Section 702 of the FISA Amendments Act, a powerful surveillance authority that allows the NSA to target and collect communications of non-U.S. persons living outside the United States. Section 702 predictably causes the incidental collection of American communications that are swept up during foreign intelligence surveillance, too.
These are some of the most glaring problems with this House bill.
New Potential Surveillance Targets
The Nunes bill expands the statutory terms “foreign power” and “agent of a foreign power”—both of which can be approved for NSA surveillance—to include a broad set of cyber-related activities. These activities include efforts to impair the “confidentiality, integrity, or availability of computers,” so long as those activities threaten the national defense or security of the United States.
But, according to the bill, surveillance can be approved for individuals not actually acting on behalf of a foreign power. Instead, those individuals must simply either knowingly aid or abet another person who is performing “international malicious cyber activity.”
This expansion of potential surveillance targets would extend not just to the NSA’s Section 702 surveillance, but also to all other kinds of foreign intelligence gathering. In this regard, far from reforming the federal government’s surveillance activities, the Nunes bill would significantly expand them.
An Optional “Fix” to the Backdoor Search Loophole
Under Section 702, the NSA targets foreign individuals located outside the United States. Predictably, communications written and sent by Americans are also swept up in that collection. Those communications are then stored in a massive database that can be searched by other intelligence agencies, including the FBI and CIA. When those agencies search the data—even when it belongs to U.S. persons—they do not obtain a warrant.
These searches are called “backdoor” searches because they avoid the constitutional warrant requirement provided to U.S. persons by the Fourth Amendment.
While some of the other pending Section 702 reauthorization bills have proposed warrant requirements on backdoor searches of Americans’ communications, the Nunes bill gives the government the option whether or not to seek a warrant before reading these communications.
From the bill: “the Federal Bureau of Investigation may apply for an order of the [Foreign Intelligence Surveillance Court]” to approve access to such communications.
Constitutional rights are guaranteed, not optional.
Borrowing from its Senate-side sibling, the Nunes bill provides guidance on how to restart “about” collection, an invasive form of NSA surveillance that the agency ended earlier this year. Also, in defining “about” collection, the bill includes language that suggests the NSA can target “a facility, place, premises or property” for surveillance. This could mean that the NSA has the authority to target entire buildings, houses, or data centers populated by U.S. persons or their communications.
To learn more about what’s wrong with the Nunes bill, check out the opposition letter that EFF joined, along with dozens of other groups.
Your voice is needed immediately. Rep. Nunes’ FISA Amendments Reauthorization Act of 2017 will be sent to markup by the House Permanent Select Committee on Intelligence tomorrow, on December 1. That is a remarkably short time for this process.
Call and contact your representatives today to stop this bill. Tell them it is unacceptable.