The Trump administration is pushing to permanently renew a controversial surveillance law before it expires on Dec. 31. Passed in 2008 and renewed in 2012, Section 702 of the Foreign Intelligence Surveillance Act has been called a “crown jewel” by the leader of the American intelligence community. In a letter to congressional leaders in September, Attorney General Jeff Sessions said renewing 702 is the “top legislative priority of the Department of Justice and the Intelligence Community.”
Section 702 authorizes two major programs for the National Security Agency. One part, called upstream collection, allows agencies like the NSA to plug in to the backbone of the internet with assistance from companies like AT&T and sift through large swaths of data. The other, called downstream collection or PRISM, requires internet companies like Apple, Facebook, and Google to turn over data on targets the NSA has identified. But critics of the law say these programs can sweep up the communications of Americans, and allows agencies like the FBI to search through it without a warrant.
That’s why Sen. Ron Wyden, an Oregon Democrat, and Sen. Rand Paul, a Kentucky Republican, plan to introduce a bill Tuesday that would enact major reforms to the law. The most substantial overhaul of the law proposed in the bipartisan bill would be to require a warrant for searches of Americans’ data. The bill will also move to formally ban one of the most controversial NSA programs authorized under 702, called “About collection.” The NSA said it would end this practice in April.
“About collection” allowed the agency to collect communications that are simply about a foreign target, regardless if they were under legal surveillance or suspected of a crime. If two Americans emailing simply mentioned one of the NSA’s 100,000 foreign targets, their emails could be swept up per this program.
“[Section 702] has not kept up with the times,” Wyden told VICE News. “Particularly given that telecommunications today are globally connected. It’s not like they all just stop at one nation’s borders. It’s important that there be fresh policies to ensure that when we do target a serious overseas national security threat, that the government doesn’t end-run the Constitution.”
For years, the intelligence community has rebuffed efforts by legislators like Wyden to demand an estimate as to how many Americans are surveilled under Section 702. But during a Senate Intelligence Committee hearing in June, Dan Coates, the Director of National Intelligence said it would be “infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a U.S. person’s communications may be incidentally collected under Section 702.”
The law has a built-in “sunset” provision, meaning Congress has to re-approve it every four years, but the Trump administration and the intelligence community are pushing Congress to renew the law without any changes, and to enact the law permanently. If it were enacted permanently, it would strip Congress of any leverage to make changes to the law, making any potential reform much more difficult.
A bipartisan group of former national security officials, including former Director of National Intelligence James Clapper and former CIA Director John Brennan, sent a letter to top congressional leadership in support of reauthorizing 702 Monday, calling it “the most effective mechanism to protect the U.S. from the very large number of real threats that use American email and Internet services.”
Wyden has also criticized intelligence committee leaders for marking a proposed 702 bill in secret, and on Monday sent a letter urging a public hearing. “I think that this piece of legislation that’s going to be considered, essentially between now and the end of the year, is one of the most important pieces of the national security puzzle,” Wyden said. “And when people want safety and liberty, I’m not convinced this bill is going to do much for the American people on either count.”