By Ellen Nakashima
The Washington Post
The Senate Intelligence Committee is planning on Tuesday to debate in secret a bill that would reauthorize a powerful surveillance authority without imposing any new restraints on the FBI’s ability to search and use the communications of Americans gathered under that law in national security and criminal prosecutions.
The bill, drafted by Chairman Richard Burr (R-N.C.), would enshrine the FBI’s right to use emails and other data collected from U.S. tech companies without individualized warrants in cases related to terrorism, espionage and serious crimes such as murder and kidnapping.
The legislation is aimed at revising a law often referred to as Section 702, a portion of the Foreign Intelligence Surveillance Act amended in 2008. It authorizes the government to gather the communications of foreign targets located overseas, a process that may incidentally sweep up the emails, phone calls and texts of Americans.
The law is due to expire at the end of the year.
Burr’s bill would also enable the National Security Agency to restart a controversial form of email collection if a federal surveillance court agrees and Congress does not block the move within 30 days, according to individuals familiar with the draft. Burr’s office did not respond to a request for comment.
The government’s power under Section 702 has been called the “single most important operational statute” the NSA has and the “crown jewel” of surveillance authorities because of the rich intelligence it yields without the government having to obtain an individualized warrant.
But the law has prompted significant concerns from civil liberties advocates. In particular, they object to the fact that the communications of Americans who might be emailing with or talking to a foreign target are being gathered and potentially searched without a warrant, in what they contend is a violation of the Constitution.
Burr’s version, if it is not amended — and some aides caution it could change before next week — is likely to draw opposition from lawmakers and privacy advocates who want to see new limits placed on the government’s authority to search for and use the data gathered under Section 702. Some lawmakers, such as Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.), want the FBI to obtain a warrant before querying the 702 database for U.S. persons’ communications. They are expected to introduce their bill next week.
The leaders of the House Judiciary Committee arrived at a compromise position. Two weeks ago, they introduced a reform bill that would require an agent to get a warrant — not to search the database but to review or share any communications turned up in a search for evidence of a crime. But no warrant would be required in cases involving espionage or strict foreign intelligence.
Civil liberties groups say they hope the Judiciary Committee will strengthen the privacy protections in the House’s USA Liberty Act before voting on it.
Another provision of Burr’s draft bill, the FISA Amendments Reauthorization Act, is also likely to stir criticism from privacy advocates. It would enable the NSA to revive its “about” collection, which it halted this year after the Foreign Intelligence Surveillance Court raised privacy concerns. “About” collection involves gathering emails that are neither to, nor from, a particular foreign target but that contain a reference to that person in the email’s body. It could be the person’s email address, for instance.
Under Burr’s draft, if the NSA is able to find a technical way to restart the collection and satisfy the court’s concerns, then Congress has 30 days to pass a law to block the move. That is unlikely to occur, analysts say, because President Trump would not sign a law that constrains his intelligence agencies.
The USA Liberty Act would codify the ban on “about” collection for six years. At the end of that time, the ban could be revisited.
There are some lawmakers, such as Sen. Tom Cotton (R-Ark.), who want to renew Section 702 without change and to do so permanently. But such a proposal is not likely to survive in the House, where some conservative Republicans and liberal Democrats are in sync on civil liberties concerns with surveillance.
Senate aides said it is far from clear that Burr’s bill, if it advances without change, can get the votes needed to pass in that chamber. Similarly, the bill is unlikely to gain traction in the House, which has twice voted for a warrant requirement to search Section 702 data.
“It doesn’t do two of the main things we must accomplish in any 702 reauthorization and reform legislation,” Rep. Jerrold Nadler (D-N.Y.), a senior member of the House Judiciary Committee, said in an email to The Washington Post.
Any bill, he said, must, at minimum, require a warrant for access to 702 information for any criminal investigation purposes. And it must end “about” collection, which he called “a program that for a decade has swept in purely domestic communications and never complied with the Fourth Amendment.”
“A majority of my colleagues, both Democrats and Republicans alike,” Nadler said, “would refuse to support a reauthorization bill that does not accomplish these two necessary reforms.”