This week, the United States House of Representatives voted on the House Amendment to S. 139, the FISA Amendments Reauthorization Act of 2017 (FAA), designed to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA). This tool is used as the legal basis for much of the warrantless digital surveillance performed by the NSA. The vote was 256-164. The renewal, if made law, would extend the surveillance powers granted in FISA Section 702, with minor reforms that fall far short of those that i2Coalition has advocated for.
The i2Coalition has been working for years to address concerns around mass surveillance. We have been fighting for reforms that increase transparency and oversight, and that address privacy and free speech concerns. i2Coalition collaborates with many partners in working diligently on these important issues. We are leaders in showcasing the current state of mass surveillance as a critical business issue in the tech community. Surveillance programs, globally, create severe consumer confidence issues, particularly when they lack transparency and proper oversight. These programs reduce the investment and growth of the vital Internet infrastructure industry. The path chosen by the House is bad for the Internet economy.
Surveillance reform is one of the key issues upon which the i2Coalition was founded in 2012. While the House vote on Section 702 is a setback, it is not the end of the fight. The renewal will now move to debate in the Senate, and we have an opportunity to stop it there. i2Coalition and its partners are working hard to advocate for FISA Section 702 reforms in the Senate in the coming days. We will make every effort in the Senate debate to call for real reform when Section 702 is ultimately renewed.
As detailed in our end of 2017 post and our look forward to 2018 post Section 702 reform will be a prolonged fight. This is the first of many new challenges for the Internet infrastructure industry in 2018, but the i2Coalition is here to face each of them head-on.
UPDATE: A Clarification On The What The FISA Amendments Reauthorization Act of 2017 Does And Doesn’t Do.
This is a complicated bill, with some reforms, but ultimately falls short.
The bill’s positive reforms lie in oversight. For instance, sharper requirements that the court oversees the program annually to review the way intelligence officers query the data. The bill demands more reporting to Congress about how the data is used and what Americans are getting snared in the collection. There is also a mandatory warrant requirement for predicated FBI criminal investigations if the government wants to directly introduce that evidence in court. Of course, this is only one circumstance, allowing plenty of circumstances in which warrantless surveillance persists.
But unfortunately, it is an ineffective reform bill in its express allowance for well-documented practices of warrantless surveillance that have been targeted for reform. One such issue area is the bill’s addressing of the government’s practice of “backdoor searches.” In these searches, FBI collected data can be used in unrelated cases. Another is “abouts” collection, wherein communication not only to or from a target can be gathered, but communication that also merely mention a target. Neither practice is expressly authorized in Section 702, but both are codified in this bill as law. Some restrictions and oversight are placed on the use of these practices, but they fall short of the warrant requirement found in the alternate USA Liberty Act, which i2Coalition supported.
The i2Coalition and others have been fighting to curb such programs with real reform. Unfortunately, if this bill passes, it will be six years before we are able to enact additional reforms. What we got was a step forward in oversight reform and a step backward in bad privacy reform. We were hopeful for the opportunity to do more to protect the privacy of the general public. We’re proud to have won some concessions on oversight, and avoided the call for a permanent reauthorization, however.
UPDATE: Cloture Vote Scheduled for Today, 1/16/2017 at 5:30 PM EST.
The Senate will be having a cloture vote today on the FISA Amendments Reauthorization Act (S. 139) today at 5:30 PM EST. As mentioned above this act renews Section 702 of the Foreign Intelligence Surveillance Act, expanding the government’s ability to surveil Americans without a warrant. i2Coalition members and concerned members of the public should call their senator and urge them to vote no on this bill today. The number for the U.S. Capitol Switchboard is (202) 224-3121. A switchboard operator will connect you directly with the Senate office you request.