Section 702 of the Foreign Intelligence Surveillance Act – the authority that allows the FBI and other agencies to review Americans’ communications “incidentally” collected in foreign surveillance – is set to expire Dec. 31. And the intelligence community and its champions on Capitol Hill are pulling out all the stops to ensure that reauthorization happens with little or no change.
Their message is that personal and national security will be at risk if we entertain any surveillance reforms. Otherwise, curtailing the federal government’s power to review our personal information opens the door to cybercriminals, human traffickers, and fentanyl dealers, while making us all stooges of the People’s Republic of China.
These smashmouth tactics show just how panicked the surveillance lobby is becoming. They can see that for the first time in almost a half-century an unprecedented coalition of conservatives and liberals have come together for surveillance reform. From Rep. Darin LaHood (R-IL), who leads the 702 working group in the House, to Rep. Jerry Nadler (D-NY), Ranking Member of the House Judiciary Committee, Members of Congress are concerned about the widespread potential for the FBI and other agencies to abuse Section 702 data. This authority was crafted by Congress to authorize foreign surveillance but is used by the FBI as a warrantless “backdoor search” of Americans.
“Under an authority as powerful as Section 702, even if the intelligence agencies are not targeting us directly, the government is sweeping up records of our banking, our meetings, our education, and our simplest human interactions,” Rep. Nadler said.
Rep. LaHood, who favors reauthorization and recently revealed that he himself was surveilled by the FBI, is adamant that a “clean” – or unamended – version of 702 is not acceptable.
Thus the emergence of this left-right coalition for Section 702 reform has the intelligence community in full lobbying mode. Officials who rarely appear in public are suddenly coming out of the shadows to make public statements and appearances.
For example, Tonya Ugoretz, assistant director of the FBI’s directorate of intelligence, spoke at a recent Aspen Institute conference. She addressed a proposal advanced by Travis LeBlanc, who sits on the watchdog Privacy and Civil Liberties Oversight Board, for a warrant requirement for Americans under Section 702. “In most instances, it would likely be impossible to meet the probable cause standard,” she said.
Poor Fourth Amendment, which has no cyber carveout for probable cause warrants. Yes, the Fourth Amendment is part of the U.S. Constitution. But it is just too unwieldy and inconvenient to be incorporated in some form or fashion into Section 702. Sorry.
Another strategy of the intelligence community and its Hill champions seems to be to go on the offensive with messaging bills. These bills are aimed at underscoring how much we need government regulation of encryption, social media, and surveillance to protect us from the vilest crimes and worst threats to our civilization.
For example, the Cooper Davis Act would require social media, private messaging services and cloud providers to report users’ discussions about illegal drug sales to the Drug Enforcement Administration, which would then be free to share it with other agencies. This bill is being sold as a counter to America’s out-of-control fentanyl and opioid epidemic.
The Electronic Frontier Foundation notes that Cooper Davis would “result in a host of inaccurate reports and in companies sweeping up innocent conversations, including conversations about past drug use or treatment.” We would add that DEA would likely be inundated with a lot of old Cheech & Chong routines. It is unlikely, however, that actual fentanyl dealers will get caught posting: “Hey, buy discount fentanyl here.”
Another example is the Restrict Act, which would grant the U.S. Secretary of Commerce sweeping powers to protect Americans from being exploited by China and other hostile nations. It is a study in overkill. It empowers the Secretary to “identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate” speech regarding “federal elections” and “national security.” If enacted into law, the Restrict Act would transform the Commerce Secretary into yet another surveillance authority and a national speech czar.
Yet another overkill bill is the EARN IT Act, which would impose criminal or civil liability on encryption services, holding that the mere use of encryption is evidence that a service is reckless or negligent in identifying child sexual abuse material. Forget that encryption is used by billions of people around the planet to protect their privacy. EARN IT would steamroll over the rights of millions of Americans who use encryption to protect themselves from cyberthieves, trolls, stalkers, and other threats, while arguably backfiring in actually protecting children by undermining prosecutions.
None of these bills is likely to pass. All of them underscore the argument of the intelligence community that any reform is too risky for children, national security, and health, as well as keeping us safe from China.
There are signs this rhetorical overkill is not working. Even Sen. Mark Warner (D-VA), who chairs the Senate Select Committee on Intelligence, is saying, “I’m open to reforms” of Section 702.
PPSA believes it is well within our country’s ability to do a better job of protecting children, defeating drug traffickers, and deterring China without resorting to warrantless surveillance of Americans. With sensible reforms, we can protect both our safety and our civil liberties.