FISA Reauthorization Bill Is a Mixed Bag

Widespread controversy over the Foreign Intelligence Surveillance and Accountability Act (FISA) continues, as the December 31 deadline for reauthorization is fast-approaching. Politicians and civil liberties groups alike have worked for several years, particularly since the revelations made by Edward Snowden, in an attempt to strike a balance between privacy and national security. FISA has been a centerpiece of this discussion, and its reauthorization discussions have brought it once again to the forefront.

A discussion draft from the House released just days ago addresses some of FreedomWorks’ major concerns about Americans’ privacy, and is leaps and bounds above the Senate’s alternative of permanent reauthorization of FISA without any reform. Protecting innocent Americans from government surveillance is of utmost importance in the balance between security and privacy. The House draft of FISA reauthorization, known as the Uniting and Strengthening American (USA) Liberty Act, meets these protection needs in some aspects, and falls short in others.

FreedomWorks’ principles on FISA reauthorization prioritize the sunset of reauthorization, codification of the end of “about” collection, disclosing incidental collection, increasing transparency and limiting the information collected, and closing the backdoor search loophole. The USA Liberty Act fully addresses three of these, halfway addresses one, and leaves one entirely untouched.

With a law that expands the government’s surveillance abilities as significantly as FISA does, it is essential that Congress continue to review its effects regularly. This is done by retaining the sunset provision of the bill, requiring Congress to renew the act, and not allowing it to continue forward unchecked. Section 301 of the USA Liberty Act honors this need, reauthorizing FISA for six years, through September 30, 2023.

The term “‘about’ collection” refers to the provision in FISA that allows government targeting of communications that are “about” a targeted non-United States person reasonably believed to be located outside the United States. This is problematic in that it allowed, until the National Security Agency (NSA) announced it would cease to do so in April of this year, collection of Americans’ electronic communications “about” a targeted person.

While the NSA announcement was a critical step in protecting Americans from government surveillance, ending “about” collection must be codified into law in order to make certain that this type of surveillance is illegal. The USA Liberty Act addresses this, “requir[ing] that the targeting of a person is limited to communications to or from the targeted person,” as stated in Section 102 of the draft.

Three sections of Title I of the USA Liberty Act are designed to tackle the need to disclose the magnitude of incidental collection of Americans’ communications previously under FISA. Section 105 requires the Director of National Intelligence to submit a report including the number of communications acquired. Absent the ability to gather this number, Section 105 requires further reporting on the number of United States persons whose information is unmasked, requests made to unmask such information, requests that resulted in dissemination of such persons’ information, among other statistics. Sections 106 and 107 list additional reporting requirements to make known the magnitude of FISA surveillance.

A significant problem with the intelligence community in the United States remains its secrecy. This secrecy is for good reason, as intel gathered would often be useless if shared publicly, and hinder our intelligence experts from effectively securing our country. However, hidden uses of FISA past its explicit purpose of counterterrorism and espionage are unacceptable.

FISA should be transparent enough that Americans can be certain that the law isn’t interpreted secretly by the government in a way that contradicts how citizens are led to believe it is being used. The USA Liberty Act combats this problem in part. Included in Title II are limits on data retention, whistleblower protections, and increased accountability of officials hired to oversee privacy and civil liberties issues in FISA. What it does not change, which is problematic, is the currently wildly overbroad definition of “foreign intelligence information” given in 50 U.S. Code § 1801. This is a glaring shortfall of the legislation.

The most glaring shortfall, however, is the backdoor search loophole, known also as the U.S. person query, which the USA Liberty Act does not touch. There is no excuse, in any circumstance, that the government may violate the Fourth Amendment rights of its citizens to subject them to a warrantless search.

Using information gathered under Section 702 of FISA, the intelligence community has conducted searches of “known U.S. person[s].” This is blatantly unacceptable, and is known as the “backdoor search” loophole. Closing this loophole would be easily done with a provision requiring the government to obtain a warrant before searching Americans’ communications. Unfortunately, this critical aspect of FISA reform is missing entirely from the USA Liberty Act.

In the bigger picture, there are more than the simple facts to consider in moving forward on FISA reauthorization. S. 1297, introduced by Sen. Tom Cotton (R-Ark.), is the present “alternative,” using that term loosely because it isn’t an option, to the USA Liberty Act. It addresses zero of five primary concerns FreedomWorks has about FISA. Sen. Cotton’s bill, or one that temporarily reauthorizes FISA without reform, would likely face significant hurdles to passage, and FreedomWorks would oppose it.

The permanent reauthorization with no reforms that the Senate bill puts forth for FISA would be tragic for the privacy and rights of Americans in government surveillance. Those in the House Judiciary Committee and members who will visit this bill on the floor should think carefully about the pros and cons of the USA Liberty Act before casting their vote.