Today the Senate Select Committee on Intelligence is marking up, in secret, Chairman Burr’s bill to extend the FISA Amendments Act Section 702 warrantless surveillance program, the FISA Amendments Reauthorization Act. While the bill is not yet public, I published a copy here yesterday, alongside a revised draft of the Goodlatte-Conyers House Judiciary Committee bill, the USA Liberty Act. Now comes a third major stab at legislation to deal with the 702 program, which is set to expire at the end of 2017 if Congress enacts no extension bill, and proposed reforms: Senators Ron Wyden’s and Rand Paul’s USA Rights Act, linked here and also posted below.
The Rights Act will be formally introduced later today, and I suspect Wyden will also propose its text as a substitute amendment to the Burr bill at the SSCI hearing today, and then it will probably be rejected by a majority of the committee, as that is also what happened with the Patriot Act Section 215 expiration/reform fight. [See Power Wars, Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 10 (Outside the Oval Office: Freedom Act I).]
Here is a run-down of some major differences:
| Burr’s draft SSCI bill, the FISA Amendments Reauthorization Act of 2017 | Goodlatte-Conyers’s HJC bill, the USA Liberty Act of 2017 | Wyden-Paul’s bill, the USA Rights Act of 2017 | |
| Sunset: Extension of the Section 702 warrantless surveillance law, which is now set to expire on Dec. 31, 2017, until | Dec. 31, 2025 | Sept. 30, 2023 | Sept. 30, 2021 |
| “Backdoor searches” for Americans’ content within the 702 repository of e-mails etc. collected without a warrant | No change: US person queries still permitted without a court order | Queries without an order still permitted for intelligence purposes. Queries for criminal purposes would ping the database and say whether there is a hit, but a judicial warrant that there is probable cause for a serious crime would be necessary to view it. | Judicial warrant required for any type of query (criminal or intelligence); absent a warrant database would not show whether there was a hit |
| Collection of “about the target” communications that are neither to nor from the target, which the NSA recently ceased | Would permit the NSA, with the FISA Court’s permission, to turn “about” collection back on, with 30 days prior notice to Congress and expedited consideration of any bill to block the resumption | Would codify a ban on “about” collection until the sunset of this cycle of 702 reauthorization | Would ban “about” collection |
| Limits on law enforcement use of 702 information against Americans | Would limit use of 702 information as courtroom evidence in criminal prosecutions to national-security cases and a list of serious crimes e.g. murder; but imposes no limit on use of 702 information for investigations or civil/administrative cases | Would impose no law-enforcement usage limits on investigations or courtroom evidence | Would limit law enforcement use across the board (investigations, courtroom evidence, administrative proceedings) to a list of national-security matters |
| Notice to defendants when they face evidence “derived from” 702 warrantless surveillance | No change | No change | Would tighten definition of what triggers a notification requirement |
| Chief Justice Roberts’ unilateral power to select which judges serve on the FISA Court | No change | No change | Would impose a check and balance by having the chief judges of each of the 13 circuit courts of appeal nominate contenders to the chief justice for final selection |
Wyden Paul USA Rights Act (Text)
Pre-markup SSCI Burr 702 bill draft (Text)