702 reform – Techdirt (original) (raw)

House Committees Offer Up Competing Section 702 Reform Bills. Only One Has Any Actual Reforms.

from the protecting-all-Americans-vs.-protecting-career-politicians dept

As is the case any time surveillance powers are up for renewal, there’s always a chance to reform them. Most of these efforts tend to get derailed by a majority of legislators who just want to push things through before any lively discussion takes place. Every so often, legislation is passed that modifies authorized powers after the fact.

Despite the fact that declining to renew the powers is always an option, this is a route that has never been taken. Even with plenty of Republicans pushing to severely restrict Section 702 for purely political reasons, no one seems to have the guts to state “Hey, we’re just not going to do this any more.”

But as the clock winds down on the year, nudging everyone closer to voting on a reauthorization, competing reform bills have been brought forward by two different House committees. But one is reform in name only. The other contains actual reforms.

The House Intelligence Committee is pitching a set of reforms that barely contain any reform. Of main concern to most privacy activists and privacy-focused legislators is the FBI’s warrantless access to US persons’ info via Section 702 collections. The FBI has constantly abused this power to turn a foreign-facing NSA collection into a domestic surveillance tool.

The Intelligence Committee’s bill (H.R. 611 [PDF]) reforms hardly anything. It codifies voluntary policy changes enacted by the FBI to limit its own abuses. The only warrant requirement is in cases involving criminal investigations, which is an extremely small subset of FBI backdoor searches.

Rather than protect all Americans from warrantless searches by the FBI, the Intelligence Committee’s bill would only protect the Americans they respect the most: themselves and those similarly situated on Capitol Hill.

The bill also includes numerous provisions that would further protect members of Congress or other high-profile officials, including requiring a lawmaker’s consent before gathering information for a “defensive briefing” about a lawmaker being targeted by a foreign entity. It also requires the FBI to notify a member of Congress, with some limitation, if they have been queried in the 702 database.

These provisions were prompted by the FBI’s (extremely questionable) search of Page’s communications via its 702 powers, as well as notifications received after the fact by other Republican leaders who’d had their communications searched, if not accessed, by FBI analysts.

Not only does it provide a path for (nearly) clean reauthorization of these powers, it extends access to the NSA’s 702 collection to border security agencies to allow them to vet asylum seekers by pawing through any communications they might find in this collection. The FBI spent years abusing this authority to engage in warrantless surveillance. If anyone thinks the ICE, CBP, and other DHS components won’t be just as willing to abuse this access, they’re clearly delusional.

It also expands the definition of “electronic communication service provider” to include “equipment.” This means 702 can be used to sweep up data and content that isn’t housed or transmitted by traditional service providers, like email services or internet providers. With this expanded definition, the only limit is the government’s imagination.

Greg Nojeim, director of the Center for Democracy and Technology’s (CDT) Security and Surveillance Project, called HR 6611 a “Trojan Horse” and warned it would actually expand surveillance powers.

“This Trojan Horse would take FISA 702 orders beyond the realm of communication services (like email and messaging providers) and pull in anyone who could access equipment on which communications might be sent or stored,” Nojeim said on Friday.

“This could include data centers that merely rent out computer space, hotels and Airbnb owners, and even the local library or coffee shop. Including this provision would seriously impact American businesses far outside the communications and tech sector.”

Fortunately, the House Judiciary Committee has its own proposal — one that actually includes meaningful reforms. H.R. 6570 [PDF] introduces an actual warrant requirement for all searches involving US persons, no matter which agency is performing the search. As the Brennan Center’s Elizabeth Goltein explains on Elon Musk’s Internet Hate Machine Twitter X, the Judiciary’s bill folds in other surveillance reform acts, including Senator Wyden’s “Fourth Amendment Is Not For Sale Act,” which would require warrants to obtain cell location data from data brokers.

Unfortunately, it’s unlikely either of these efforts will move forward any time soon. (Hopefully, the Intelligence Committee’s bill will never move forward.) There’s already an agreement in the works to push off the renewal until next April to ensure Section 702 doesn’t expire while it’s still under (heated) discussion.

Not that this punting of the problem until next year is making anything less contentious.

Speaker Mike Johnson (R-La.) is taking heat from the hard-right conservative wing of his conference over the addition of a short-term extension of the nation’s warrantless surveillance powers in the Defense authorization bill.

The Republicans that simply want the FBI to leave Republicans alone aren’t happy their reform efforts are being put off. The bipartisan Judiciary Committee isn’t thrilled its reforms — which are actual reforms — are being backburnered. And then there are surveillance hawks that firmly believe putting off renewal for any reason is going to set us up for another 9/11.

Johnson has faced significant lobbying on the matter by leaders of the House Intelligence Committee. Rep. Jim Himes (D-Conn.), the top Democrat on the panel, was spotted speaking with Johnson on the House floor earlier this week.

“You can air drop the whole reform bill into the NDAA. And you know, he decided not to do that. OK, that’s fair. But what you can’t do is not have a temporary extension. Because the next likely vehicle for reauthorization is the Jan. 19 successor to the [continuing resolution]. So just that alone is a potential 19-day, no-702 period, which is the period in which Americans get killed,” Himes told The Hill on Tuesday.

Filed Under: 702 reform, fbi, house intelligence committee, nsa, section 702, surveillance

FISA Oversight Board Member Says Americans Need More Privacy Protections As Congress Debates Section 702 Reauthorization

from the doing-the-right-thing-for-the-wrong-reasons dept

One of the NSA’s most powerful spying tools is up for renewal at the end of the year. The problem with this power isn’t necessarily the NSA. I mean, the NSA has its problems, but the issue here is the domestic surveillance performed by the FBI via this executive power — something it shouldn’t be doing but has almost always done.

The FBI is currently catching a lot of heat for its “backdoor” access to US persons’ data and communications, something it has shown little interest in controlling or tracking. Abuse is a regular occurrence and this abuse finally received some high profile attention after Congressional Republicans got bent out of shape because some of their own people ended up under the FBI’s backdoor Section 702 microscope.

So, while there’s some grandstanding going on, the underlying concerns do need to be addressed. And Democrats have only themselves to blame for allowing the FBI to continue to abuse the privilege. They re-upped the program right after Trump took office. That it’s the Republicans complaining about surveillance abuses after banding together to ensure President Trump had this power is especially ironic. But let’s not forget prominent Democrats who previously complained about surveillance abuses decided it was a good idea to vote in favor of an unaltered reauthorization.

Section 702 allows the NSA to perform “upstream” collections of data and communications. It’s foreign-facing but it also collects any communications between foreign targets and US persons. That’s where the FBI steps in. It’s only supposed to be able to access minimized data and communications, but these restrictions are often ignored by the agency.

With this power on the line, a member of the Privacy and Civil Liberties Oversight Board (PCLOB) is expressing his concern with the ongoing failure of the DOJ and FBI to get the FBI’s abuse of this surveillance power under control.

The PCLOB was formed in the wake of the Snowden leaks to advocate on behalf of Americans and their rights. The PCLOB makes the court adversarial — something it always should have been (since Americans’ rights are often implicated in surveillance requests) but never was.

Travis LeBlanc — who served in Obama’s administration but was appointed to the PCLOB by President Trump — was interviewed by the Washington Post. And he says reauthorizing Section 702 without drastic alterations would be a mistake.

“I do have concerns with a clean reauthorization,” he said, and he believes the program needs “common-sense protections that could be put in place to balance privacy and civil liberties with the national security interest.”

Specifically, the program needs constraints on the FBI’s access and use of the data collected by the NSA. For years, the FBI has abused its access to perform backdoor searches of Americans’ data. And for years, it has been unable to explain why it can’t stop violating minimization procedures and what, if anything, this unexpected, “incidental” treasure trove contributes to its law enforcement work.

LeBlanc says it’s time to add the Fourth Amendment back into the mix to put an end to this form of secondhand, warrantless surveillance.

LeBlanc also said that “it is apparent we have reached a point where the massive number of U.S. queries, in particular, warrant the use of a prior court order before allowing any search of a Section 702 collection for U.S. persons information.”

To that end, LeBlanc suggests a couple of changes. First, there’s the court order requirement. Then Congress could limit the NSA’s haystack-building apparatus by ending its “about” variables, which allow it to also search for communications that merely mention certain individuals, rather than limiting collection to those actually communicating with the agency’s targets. Finally, Congress should act to limit or forbid “batch searches” of 702 collections by the FBI, preventing it from engaging in mass violations of the Fourth Amendment courts (so far) have ruled the government should never have to answer for.

If anyone can get this done, it’s Congressional leaders motivated by personal animus and political grandstanding. An entire party is, at the moment, extremely angry at the FBI. Blatant self-interest may finally achieve what privacy advocates and activists have been seeking for several years. If the ends are going to justify the means, it may as well be these ends and those means. Some concern for the little people would be nice, but as an advocate of restricted surveillance powers, I’m willing to take what I can get.

Filed Under: 702 reform, backdoor loophole, backdoor search, civil liberties, ed snowden, fbi, nsa, pclob, section 702, surveillance, travis leblanc

House Intelligence Committee Lobs Zero-Reform Section 702 Bill Into The Mix At The Last Possible Minute

from the referred-to-as-'STATUS-QUO-Bill-2017' dept

With less than a month remaining (factoring in extended Congressional Christmas vacations) before the expiration of certain NSA collection authorities, the House Intelligence Committee has finally offered up its awful clone of the Senate Intelligence Committee’s reform-less renewal bill.

It’s basically a mirror image of Senator Burr’s bill, right down to the offer to turn back on the “about” email collection the NSA voluntarily shut down because it just couldn’t stop collecting US persons’ communications. All the NSA has to do is notify Congress it wants the program back and hope the next 30 days go by without someone pushing through a bill codifying the voluntary shutdown.

The only positive of the HIC bill [PDF] is the length of the renewal. At four years, it’s far shorter than the Senate offering, which would push the next renewal out to 2025. Other than that, there’s really nothing in the bill approaching any idea of reform. There’s no warrant requirement for US government agency searches of NSA data stores for US person info and the bill expands the coverage of the NSA’s dragnet by redefining targets to include “facilities, places, and premises.” With this, the NSA can target entire organizations, service providers, or just use the broad definition to attach its tendrils to Tor traffic.

The FBI’s backdoor search loophole also remains unclosed, allowing the government to prosecute Americans and foreigners for criminal activity without having to disclose the source of its evidence. Yes, the DOJ is supposed to notify courts and defendants of the existence of Section 702-derived evidence, but the DOJ has skirted this obligation almost entirely for most of last decade.

This is a truly sad offering by the NSA’s supposed oversight. It asks nothing of the agency or the agencies tapping into its collections. It simply kicks the can down the road with the added “bonus” of giving the NSA another swing at a collection program known best for sweeping up domestic communications. And, given the timing, we can expect the Intelligence Committee to staple this turd to a must-pass budget bill at the last minute, giving the public the shaft while claiming to care deeply about the welfare of the country during discussions about impending government shutdowns.

Filed Under: 702 reform, congress, nsa, section 702, surveillance

Most Senate Intelligence Committee Members Are Fine With Domestic Surveillance By The NSA

from the 13-of-15-Senators-agree-to-ignore-the-Fourth-Amendment dept

The Senate Intelligence Committee has released its report [PDF] on its Section 702 reauthorization plan. Rather than adopt any serious reforms — like those proposed by Sen. Ron Wyden — the SIC plans to move ahead with its non-reform bill, one that’s actually weaker than the watered-down offering from the House.

The bill remains pretty much as bad as it was when it was first introduced. It still allows the NSA to start up its “about” collection again, although it does require approval from the FISA court first and contains a safety valve for introduction of legislation forbidding this collection. (I guess Wyden’s reform bill doesn’t count.)

Other than that, it’s still just bad news, especially on the Fourth Amendment front, as it allows both the collection of wholly domestic communications and backdoor searches of NSA data stores. The upshot of the report is this: eleven senators are perfectly fine with domestic surveillance.

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

There are two more you can add to this list: Sens. Feinstein and Harris. Although they voted against allowing the NSA to collect wholly domestic communications, they did vote against Wyden’s amendment, which would have limited the use of domestic communications by US government agencies to only a few national security-related crimes.

Their vote against this means Feinstein and Harris are no better than the other eleven when it comes to domestic use of supposedly foreign-facing dragnets if there’s any evidence of domestic criminal activity caught in the net. That includes a longer list of crimes which really aren’t the sort of thing we should be using dragnets to investigate: “serious bodily injury,” CFAA violations and human trafficking — the latter of which could be nothing more than US citizens helping stranded foreigners.

On top of that, there’s no judicial review involved when the government makes a determination that something “affects, involves or is related to” national security. As Marcy Wheeler has pointed out, this allows the DOJ to decide what it can or can’t collect on US persons using NSA surveillance programs.

Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

So, the Senate version is way worse than the House version, which wasn’t all that great to begin with. The fact that it’s now mid-November and these bills are now just taking the next step towards a floor vote pretty much guarantees these non-reform efforts will be stapled to the backend of a must pass appropriations bill, where they’re less likely to rejected on their own merits.

Filed Under: 702 reform, domestic surveillance, ron wyden, senate intelligence committee, surveillance