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New foreign surveillance bill would boost privacy protections

The House of Representatives side of the U.S. Capitol.

STARS AND STRIPES

By GOPAL RATNAM | CQ-Roll Call | Published: October 11, 2017

WASHINGTON (Tribune News Service) — House Judiciary Chairman Robert W. Goodlatte, R-Va., and the panel’s top Democrat, Rep. John Conyers Jr. of Michigan, reached agreement last week on a new bill that would tighten privacy protections in a surveillance law considered vital by U.S. intelligence agencies.

The bill’s attempt to shore up civil liberties runs contrary to what the White House and intelligence agencies have sought, and is likely to face opposition from a group of national security hawks in the Senate who back the Trump administration position.

Goodlatte and Conyers introduced the bill, titled the USA Liberty Act, on Friday. It would alter and reauthorize the 2012 version of the Foreign Intelligence Surveillance Act, which expires Dec. 31.

The law allows U.S. spy agencies to conduct electronic surveillance on foreign persons. Section 702 empowers the National Security Agency, under a special court order, to collect and analyze emails and other digital communications of foreigners living overseas, but the agency also ends up collecting data on an unknown number of U.S. persons, which it can later search without a warrant.

Goodlatte said the Section 702 program contributes “to a quarter of all National Security Agency surveillance and has been used on multiple occasions to detect and prevent horrific terrorist plots against our country.”

But the provisions of the law also have been misused, Goodlatte said.

“While Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that the Section 702 surveillance program can and does incidentally collect information about U.S. persons when they communicate with the foreign targets of Section 702 surveillance,” Goodlatte said.

The bill would require FBI and law enforcement agents querying the Section 702 database to obtain a probable cause order from a judge before accessing and disseminating information in the database.

Before beginning such a query, law enforcement officials would have to get higher level approval after first demonstrating that such a search has relevance, according to a bill summary.

The provisions are intended to address concerns raised by privacy advocates. They have argued that U.S. intelligence and law enforcement agencies were using this so-called backdoor search loophole to query information from an American or a permanent U.S. resident without first obtaining a court warrant, circumventing the Fourth Amendment’s prohibition on unlawful search and seizure.

The new bill would also end “about” collection, a reference to data the NSA ends up collecting that is neither to nor from an approved foreign target, but instead relates to communications about that person. Although the NSA has said it had ended the practice, the bill would codify it.

The new legislation would extend the overall surveillance provisions for six years, which means a future Congress would have to tackle the issue again in 2023.

Conyers said lawmakers on the committee had worked together to come up with a way to retain the surveillance tools while ensuring that Americans’ liberties are safeguarded, but he acknowledged that the final legislation that emerges from Congress could be somewhat watered down.

“We have to make these reforms if we are to convince a critical mass of our colleagues that we have to renew this law at all,” the Michigan Democrat said. But, the “final product may not contain everything that I’d like to see in terms of privacy protection but it’ll contain substantive reforms and reforms that have a realistic chance of becoming law.”

California Rep. Adam B. Schiff, the ranking Democrat on the House Intelligence Committee, said in a statement that there “is much I support in the legislation, including reforms to the FISA Court and additional protections for Americans whose communications may be incidentally collected” by intelligence agencies.

“However, I have concerns about the operational impacts of some elements of the proposal on counterterrorism efforts, and also believe there are additional privacy and transparency provisions and protections that should be added,” he added.

The House Intelligence Committee oversees all U.S. intelligence agencies.

In later remarks, Schiff said he had concerns about one of the provisions in the draft bill that would ask law enforcement agencies to get probable cause warrants to do searches of the Section 702 database.

“In the criminal law context, if you search something without a warrant when a warrant is required, the remedy is to exclude the evidence” from trial, Schiff said.

Instead of requiring a warrant for what are often fast-paced anti-terror investigations that never go to trial, the bill could include an exclusion for that, he said. If law enforcement finds something in the database that might be useful in prosecuting a crime, that would incentivize them to get the warrant, Schiff noted.

The final legislation “will include a sunset provision and include reforms, but there’s a lot of work to be done in negotiation on the content of those reforms,” the congressman said.

The proposed legislation would run counter to what the White House has said it wants: a so-called clean reauthorization without any changes and a permanent extension of the surveillance law, which is also what the U.S. intelligence community has sought. Director of National Intelligence Dan Coats has backed a bill by Sen. Tom Cotton, R-Ark., which would do just that.

The Cotton legislation has the backing of 13 Republican senators, including Intelligence Chairman Richard M. Burr of North Carolina, Armed Services Chairman John McCain of Arizona and Lindsey Graham of South Carolina, a strong voice on national security matters.

Coats and Thomas P. Bossert, White House adviser on homeland security and counterterrorism, have said the existing law defends the United States from terrorism, weapons proliferation and foreign espionage, and therefore should be made permanent without any changes.

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