Demand Progress Comment on Inadequate Surveillance Bill

FOR IMMEDIATE RELEASE

CONTACT: Daniel Schuman, policy director, Demand Progress Action, 240-237-3930, [email protected]

Washington, D.C.– Today, House Judiciary Chairman Bob Goodlatte (R-VA), Ranking Member John Conyers (D-MI), Rep. Jim Sensenbrenner (R-WI), and Rep. Sheila Jackson Lee (D-TX) unveiled legislation to reauthorize and modify Section 702 of the FISA Amendments Act. Section 702, which was intended to permit the government to spy on electronic communications of people outside the United States but sweeps in communications by U.S. persons, will expire at the end of 2017 absent Congressional action.

Demand Progress appreciates the hard work of the House Judiciary Committee in working to address the many problems of Section 702, but cannot support the legislation as currently drafted.

Our recent report “Institutional Lack of Candor” details over ten years of unauthorized use of Section 702. Just yesterday, 34 progressive and grassroots organizations wrote to congressional Democrats urging whole cloth reform of Section 702, cautioning them that these powers cannot be entrusted to President Trump.

The USA Liberty Act of 2017 fails to solve the primary problems with Section 702 and creates new loopholes that put Americans at risk,” said Sean Vitka, counsel at Demand Progress. “Faced with the choice of supporting this bill as drafted or letting Section 702 expire, members of Congress should support sunset.

The USA Liberty Act of 2017 does not meaningfully address reforms that Demand Progress, progressive grassroots organizations, civil liberties organizations deem necessary, as was outlined in our letter:

  • The “backdoor” fix is broken. The bill’s primary reform creates a loophole where backdoor searches of US persons can continue ostensibly for “foreign intelligence purposes.” This makes it likely that the exception would swallow the rule.
  • No meaningful limit on “use.” There are no meaningful limits on when the Section 702-acquired information can be disseminated and used by agencies other than the NSA. Without reform, information collected under Section 702 will still have a path into non-national security investigations and prosecutions.
  • Notice” requirement absent. This bill is missing a key provision that requires defendants receive notice that Section 702 information was used in their prosecutions.
  • Count of U.S. persons affected. Rather than require a count of the number of US persons affected by Section 702 surveillance, as was promised and then reneged upon by the Intelligence Community, the proposal provides intelligence agencies with the ability to submit an explanation for why such a calculation is not possible.
  • Secret law. The bill does not address transparency around legal opinions produced by the Office of Legal Counsel (OLC) within the Department of Justice. These opinions, which often are kept secret, have resulted in unconscionable misinterpretations of the law that go against the letter of the law and intent of Congress. We believe Congress and the public at large should be able to know how the executive branch is interpreting the law.

We welcome the fact that the USA Liberty Act would prohibit the reinstatement of illegal “about” collection. The government no longer engages in about collection, and the reform will sunset after 6 years, so it is not a substantial enough change to warrant support for the legislation.

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