The House is considering legislation this week to re-authorize an intelligence community (IC) surveillance law that allows for the warrantless collection of foreign suspects’ communications outside of U.S. borders.
Lawmakers will vote Thursday to potentially extend an amended version of Section 702 of the Foreign Surveillance Intelligence Act for another six years, which includes provisions related to concerns on the potential for Americans to have their communications picked up without a warrant during intelligence gathering operations on foreign persons of interest.
The House Rules Committee will meet Tuesday to consider a House Amendment to the FISA Amendments Reauthorization Act of 2017, which contains adjustments to 702 first approved by the Permanent Select Committee on Intelligence in December 2017.
Section 702 was set to expire at the end of 2017, but a short-term budget resolution passed late last month provided a brief extension through Jan. 19.
Members of the House Judiciary Committee have called for considerations to address the kind of warrants needed for IC officials to seek out access to Americans’ communications collected under 702 before approving the authority.
The new re-authorization would require the FBI to prove probable cause to receive a warrant to view U.S. citizens communications picked up in 702 foreign surveillance operations not related to national security.
Any incidental collection could not be used against American citizens in a criminal proceeding unless the FBI has previously obtained a Foreign Intelligence Surveillance Court (FISC) order to view the Section 702 information while conducting a non-national security criminal investigation.
The Attorney General would also have the authority to determine if 702 information against Americans is permissible if it relates to national security matters.
Critics of the latest attempt at extending 702 believe a re-authorization may end up expanding the IC’s ability to access U.S. citizens’ information incidentally collected during foreign surveillance operations.
Robyn Greene, policy counsel for New America’s Open Technology Institute, argues in a statement that the latest House Amendment broadens intelligence officials authority to collect information, not only picked up in communications “to” and “from” foreign suspects, but also “about” Americans.
The new legislation also allows for the FBI to access 702 information on Americans’ communications during the process when officials are determining if an area of interest is worth a full investigation, according to Greene. The amendment only stipulates this information is off limits without a warrant once an investigation has started.
“Although its proponents seek to sell the bill as a reform measure, it contains no meaningful reforms to Section 702, and in several respects, it expands surveillance authorities and codifies the worst intelligence community practices rather than reforming them. As a result, this bill is worse than a clean reauthorization with a sunset,” Greene said in a statement.
Under the legislation, IC leadership would need to develop querying procedures used to justify Section 702 operations. The FISC would then conduct annual reviews of these parameters to ensure they are in line with the Fourth Amendment.
The House amendment also requires officials to disclose their minimization procedures for determining what information is allowed to be shared with the public regarding foreign surveillance operations.