Bad Amendments to Section 702 Have Failed (For Now)—What Happens Next?

Yesterday, the House of Representatives voted against considering a largely bad bill that would have unacceptably expanded the tentacles of Section 702 of the Foreign Intelligence Surveillance Act, along with reauthorizing it and introducing some minor fixes. Section 702 is Big Brother’s favorite mass surveillance law that EFF has been fighting since it was first passed in 2008. The law is currently set to expire on April 19. 

Yesterday’s decision not to decide is good news, at least temporarily. Once again, a bipartisan coalition of law makers—led by Rep. Jim Jordan and Rep. Jerrold Nadler—has staved off the worst outcome of expanding 702 mass surveillance in the guise of “reforming” it. But the fight continues and we need all Americans to make their voices heard. 

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TELL congress: 702 Needs serious reforms

Yesterday’s vote means the House also will not consider amendments to Section 702 surveillance introduced by members of the House Judiciary Committee (HJC) and House Permanent Select Committee on Intelligence (HPSCI). As we discuss below, while the HJC amendments would contain necessary, minimum protections against Section 702’s warrantless surveillance, the HPSCI amendments would impose no meaningful safeguards upon Section 702 and would instead increase the threats Section 702 poses to Americans’ civil liberties.

Section 702 expressly authorizes the government to collect foreign communications inside the U.S. for a wide range of purposes, under the umbrellas of national security and intelligence gathering. While that may sound benign for Americans, foreign communications include a massive amount of Americans’ communications with people (or services) outside the United States. Under the government’s view, intelligence agencies and even domestic law enforcement should have backdoor, warrantless access to these “incidentally collected” communications, instead of having to show a judge there is a reason to query Section 702 databases for a specific American's communications.

Many amendments to Section 702 have recently been introduced. In general, amendments from members of the HJC aim at actual reform (although we would go further in many instances). In contrast, members of HPSCI have proposed bad amendments that would expand Section 702 and undermine necessary oversight. Here is our analysis of both HJC’s decent reform amendments and HPSCI’s bad amendments, as well as the problems the latter might create if they return.

House Judiciary Committee’s Amendments Would Impose Needed Reforms

The most important amendment HJC members have introduced would require the government to obtain court approval before querying Section 702 databases for Americans’ communications, with exceptions for exigency, consent, and certain queries involving malware. As we recently wrote regarding a different Section 702 bill, because Section 702’s warrantless surveillance lacks the safeguards of probable cause and particularity, it is essential to require the government to convince a judge that there is a justification before the “separate Fourth Amendment event” of querying for Americans’ communications. This is a necessary, minimum protection and any attempts to renew Section 702 going forward should contain this provision.

Another important amendment would prohibit the NSA from resuming “abouts” collection. Through abouts collection, the NSA collected communications that were neither to nor from a specific surveillance target