Senator Wyden's 702 Reform Bill Would Limit Backdoor Searches, Permanently Kill 'About' Collection

from the incidental-permadeath dept

As promised, Ron Wyden (along with Rand Paul) has delivered an antidote to the Senate Intelligence Committee’s completely terrible Section 702 “reform” bill. That bill, authored by Sen. Burr, would extend the NSA’s 702 powers until 2025 while allowing US law enforcement to use collected intelligence for normal law enforcement purposes. It also would have turned the NSA’s “about” collection back on, provided no one opposed it with directly-targeted legislation. This program’s ability to “inadvertently” sweep up US persons’ communications was so concerning the NSA voluntarily shut it off. (It asked to have it turned back on less than two months later, however.)

Charlie Savage of the New York Times has published the latest draft of the Wyden reform bill, titled the USA RIGHTS Act of 2017. (His annotated version of the bill can be found here.) Wyden’s bill [PDF] makes several significant changes, including codification of the NSA’s voluntary “about” collection shut down.

Beyond preventing the NSA from resuming a collection it has abused since inception, the bill also shortens the extension period to 2021, ensuring the next debate over Section 702 collections isn’t put off for nearly a decade. (The Burr bill extended the sunset to 2025. The House Subcommittee’s lukewarm reform bill set it at 2023.)

It also would attempt to close the “backdoor search” loophole that allows US government agencies to obtain domestic communications without a warrant. Wyden’s bill adds a warrant requirement for these searches — including those with a national security purpose. This serves two purposes. First, it brings the collection of domestic communications via NSA surveillance back in line with the Fourth Amendment. Additionally, it provides for better accountability by ensuring any database searches leave a paper trail. It also bans the acquisition of content “known to be entirely domestic.”

The bill also provides for better notification of prosecutors’ use of Section 702-derived evidence. It limits the use of Section 702 surveillance to national security cases, with one exception: direct approval from the Attorney General. The new notification requirements will attempt to circumvent parallel construction by preventing the government from withholding notification if there is any other conceivable way it could have obtained the same evidence (inevitable discovery, normal law enforcement surveillance methods, etc.).

It also adds further reporting requirements, including mandatory production of numbers Wyden has been seeking for years: incidentally-collected US persons’ communications. It would also require the FBI to turn over the number of US persons queries it performs using NSA-collected intel.

There are other good aspects to the bill — stuff normally not discussed during surveillance authority sunsetting. The bill would divest the power currently held by Chief Justice John Roberts. Chief justices have controlled FISA court judge selection for most of the last 30 years, resulting in a long stream of conservative picks, many of them former government prosecutors. This bill would allow all 13 circuits to nominate judges for FISC posts, which should help prevent future FISA judge picks from being so closely aligned with the Chief Justice’s views.

Finally, the bill also provides for additional Privacy and Civil Liberties Oversight Board input. The PCLOB is all but dead, but if it’s revived, it would have access to Intelligence Community whistleblower complaints.

This is the best reform bill we’ve seen offered yet. But the clock continues to tick down to 702’s renewal. Chances are, Sen. Burr’s control of the Senate Intelligence Committee isn’t going to do much to ensure this bill moves forward intact, if it moves forward at all. Between Burr and Sen. Feinstein, the oversight committee has been internally limited in terms of actual oversight. Wyden’s presence on the committee is the wild card, but entrenched powers continue to limit his effectiveness. Hopefully, some of this bill will replace the worthless, toothless “reforms” proposed by Sen. Burr and continue to nudge the Intelligence Community towards compliance with a number of Constitutional amendments.

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Comments on “Senator Wyden's 702 Reform Bill Would Limit Backdoor Searches, Permanently Kill 'About' Collection”

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Anonymous Coward says:

No, it wouldn't

Senator Wyden’s 702 Reform Bill Would Limit Backdoor Searches, Permanently Kill ‘About’ Collection

Extraordinary claims require extraordinary evidence. The bill would merely make these things illegal, but why would you possibly think the NSA would then stop doing them? At most, they’ll have to hire a team of consultants to redefine "about".

Anonymous Coward says:

Re: Re: No, it wouldn't

Yeah, it’s not like the 4th amendment stopped them in the slightest.

Theoretically, the constitution is not there to restrict the government but to grant it very limited powers… of which domestic spying isn’t one. The 10th amendment reiterated this limited nature but didn’t make much real difference.

That One Guy (profile) says:

Re: No, it wouldn't

If act A is legal, then it can be done freely and openly, and would you look at that, B, C and D are mostly like A, so they should be allowed, right? No need to bother the legislators on it, or the oversight, it should be good, and anyway, ‘better to ask forgiveness than permission’.

If act A is not legal on the other hand it can still be done, but it requires at least some effort to hide, which limits how often and to what extent it can be done. This also applies to B, C and D, such that they are likewise less likely to be done.

Even assuming that the NSA would ignore any law that they don’t care for(an assumption I certainly wouldn’t bet against) it’s still worthwhile to put roadblocks in their way, even if only to make them hesitate before they break the law anyway.

Or to put it another way, as noted on a protest sign I stumbled across at some point, ‘If what they’re doing now becomes ‘Okay’ the stuff they do secretly is going to get a lot worse.’

MyNameHere (profile) says:

A long way to get to this:

Big long story to get to the truth:

“the Senate Intelligence Committee isn’t going to do much to ensure this bill moves forward intact, if it moves forward at all.”

It’s not a bi-partisan, widely acclaim piece of proposed legislation, it’s just another one of those “made for press conference” pieces of draft legislation that shows nothing more than where a couple of outlier critters happen to sit. All it takes is two to agree, and you can write up almost anything you like.

The truth is much more along the lines that most of the critters don’t see the need for dramatic changes, so it’s unlikely that anything other than extension comes along. I know it’s not the story you want to tell, but a huge story revealing a piece of legislation that is already dying on the order paper isn’t really making a difference.

That One Guy (profile) says:

Re: A long way to get to this:

I must say, it’s nice of you to have been even about this matter, posting a ‘it doesn’t matter’ comment in both this article and the one covering Burr’s ‘reform’ bill which simple ratchets up the program.

Seeing such equal treatment of both bills, rather than ignoring the other one and lambasting this one as little more than an empty PR stunt really shows that you can indeed give fair treatment to the topic and aren’t just ragging on Wyden for trying to do what he can despite the fact that the others on the committee are intel agency tools, and for that you have my congratulations.

That One Guy (profile) says:

Re: Re: Re: A long way to get to this:

But the other one isn’t DoA, that’s the problem. It’s likely to receive a much warmer welcome because it’s in line with the positions displayed by a majority of the Senate Intelligence Committee over the years, namely ‘Give the intel agencies everything they want’.

Wyden’s may be DoA because of this, but his at least is trying to make things better, not worse, and if nothing else it can serve to draw attention to the process that would otherwise not exist.

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