Bill’s robust, meaningful reforms to Section 702 protect individual
privacy, provide for govt accountability
FOR IMMEDIATE RELEASE: October 24, 2017
Contact: Daniel Schuman, Policy Director, 240-237-3930, [email protected]
Washington, D.C.—Today, a bipartisan coalition of 42 civil liberties, civil rights, and transparency organizations coordinated by Demand Progress Action released a letter calling on Congress to support the USA RIGHTS Act, a strong bipartisan surveillance reform bill introduced today by Sens. Rand Paul (R-KY), Ron Wyden (D-OR), and nine other Senators. A companion bill was introduced in the House. The legislation contains robust, meaningful reforms to Section 702 that are necessary to protect Americans’ privacy.
“The USA RIGHTS Act is the only legislation on the table that reigns in the government’s surveillance abuses under Section 702 of the Foreign Intelligence Surveillance Act,” said Daniel Schuman, policy director for Demand Progress Action. “The USA RIGHTS Act strengthens the law’s privacy protections, forces the government to be straight with the American people about how it asserts surveillance powers, and helps ensure Congress has a meaningful check on an executive branch all too eager to trample on our rights. In these times, and especially under the erratic Trump administration, we urge Congress to expeditiously enact the USA RIGHTS Act to protect our privacy rights.”
The current surveillance law, Section 702 of the FISA Amendments Act, allows the government to unconstitutionally collect Americans’ communications without a warrant or individualized approval from a judge. The government routinely searches Section 702 data for information of US citizens and residents despite the fact that Section 702 explicitly prohibits the targeting of such persons. A September 2017 report by Demand Progress Action provides a primer on recent unauthorized activity by the Intelligence Community. The law is set to sunset at the end of the year.
The USA RIGHTS Act is markedly superior to all current legislative proposals to reauthorize Section 702. Its reforms are significantly more robust than the House’s dramatically inferior USA LIBERTY Act, which raised such significant concerns that 47 organizations withheld support from that legislation upon its introduction. Earlier in the year, 35 grassroots and progressive organizations raising the alarm about “leaving such a powerful weapon in Donald Trump’s hands.”
The USA RIGHTS Act would:
- Create a search warrant requirement that closes the so-called “backdoor search loophole” through which the government searches—without first obtaining a court-issued warrant based on probable cause—for information about U.S. persons or persons inside the U.S. It provides an exception for emergencies, but requires a court warrant afterward. This provision contrasts with other proposals, including the introduced version of the USA LIBERTY Act, which fails to completely close the “backdoor search loophole.”
- Prohibit the collection of domestic communications and permanently end “about” collection, an illegal practice the National Security Agency recently stopped because of persistent and significant compliance violations that allowed for warrantless collection of communications that merely mention an intelligence target. Collections would be limited to communications that are “to” or “from” a target. The bill would also prohibit the intentional collection of wholly domestic communications.
- Require the government to give notice when it uses information obtained or derived from Section 702 surveillance in proceedings against U.S. persons or people on U.S. soil. Notice allows a defendant to assert his or her constitutional rights, and is a necessary backstop to ensure that foreign intelligence surveillance is not being misused or used in contexts that do not involve national security.
- Address challenges litigants face in establishing standing to challenge surveillance under Section 702. Because Section 702 surveillance programs operate largely in secret, litigants often face significant challenges in establishing standing, which is required in order to challenge unconstitutional surveillance in court. This bill addresses these challenges, facilitating appropriate court oversight of the program.
- Establish a 4-year sunset of Section 702, which would terminate the surveillance authority unless Congress reauthorizes it again in 2021. This helps to ensure regular Congressional and public oversight of how the law has worked and what reforms or changes may be necessary.
- Provide transparency around the number of U.S. persons surveilled under Section 702, unless the government says that conducting such an estimate is impossible, and if so, the bill would require the government to provide a public explanation. Understanding the number of people surveilled under Section 702 is critical to gauging the intrusiveness of the law and how broadly the authorities are being used. The USA RIGHTS Act would help to ensure we have an accurate count.
- Provide new accountability and transparency provisions, including strengthening the Privacy and Civil Liberties Oversight Board, clarifying that FISA Court opinions prior to the enactment of the USA FREEDOM Act must be declassified, permitting greater provider transparency, and strengthening the FISC amici.
Also this week, the Senate Intelligence Committee is expected to hold a secret markup on its surveillance bill, which is widely expected to undermine privacy and extend the government’s surveillance authorities. 22 transparency and civil liberties organizations condemned the secret meeting, calling on the Committee to obey its own rules as well as Senate rules that require a public vote before moving to closed session.
The 11 Senate original cosponsors are: Sens. Rand Paul (R-KY), Ron Wyden (D-OR), Martin Heinrich (D-NM), Tom Udall (D-NM), Tammy Baldwin (D-WI), Bernie Sanders (D-VT), Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Mazie Hirono (D-HI), Ed Markey (D-MA), Jon Tester (D-MT).
The original cosponsors in the House are: Reps. Zoe Lofgren (D-CA), Ted Poe (R-TX), Beto O’Rourke (R-TX).
Signatories on the letter include: Advocacy for Principled Action in Government, American Civil Liberties Union, American Library Association, American-Arab Anti-Discrimination Committee, Association of Research Libraries, Brennan Center for Justice, Campaign for Accountability, Campaign for Liberty, Center for Democracy & Technology, Center for Popular Democracy, Color Of Change, CREDO Action, Demand Progress Action, Democracy for America, FirstAmendment.com, Free Press Action Fund, Freedom of the Press Foundation, FreedomWorks, Government Accountability Project, Government Information Watch, Indivisible, Media Alliance, NAACP, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National Coalition Against Censorship, National Immigration Law Center, National LGBTQ Task Force Action Fund, New America’s Open Technology Institute, Oakland Privacy, OpenTheGovernment, People For the American Way, Presente Action, Project On Government Oversight, Public Citizen, Restore The Fourth, RootsAction.org, South Asian Americans Leading Together (SAALT), Sunlight Foundation, The Constitution Project, The Nation, The Woodhull Freedom Foundation, and UltraViolet.