- A controversial surveillance law is set to expire at the end of the month.
- But Congress is still bitterly divided over whether to reauthorize it, reform it, or completely repeal it.
- FISA Section 702, which allows the US government to conduct warrantless communications collections, was born out of the post-9/11 surveillance era.
Congress has just days to extend, reform, or repeal Section 702 of the Foreign Intelligence Surveillance Act (FISA), a highly controversial surveillance law that allows the US government to track and collect the communications of foreigners overseas without a warrant, even if Americans’ communications are incidentally picked up along the way.
Lawmakers have until they leave for the holiday break on Friday to reauthorize Section 702 before it expires on December 31, but they’re still divided over how to address it.
While US officials say it’s integral to national security, citing its use in disrupting a terrorist plot to blow up the New York City subway system in 2009, privacy rights advocates worry the law oversteps its bounds and infringes on Americans’ Fourth amendment rights.
For example, when foreigners subject to US surveillance are in contact with people in the US, the government can incidentally pick up the communications of those Americans through what is called “backdoor” collection.
Edward Snowden’s leaks of classified NSA documents in 2013 revealed widespread abuse of this kind of collection. The leaks showed that the government had been using the 702 provision to sweep up vast amounts of Americans’ data directly from the servers of major Internet companies like Microsoft, Google, and Facebook through the legal authority of a surveillance program called PRISM.
The Electronic Frontier Foundation, a privacy rights group, argues on its website that the Snowden revelations show that “the fact that Section 702 surveillance regularly results in the collection and search of innocent Americans’ communications is an intended and inherent part of the system.”
But the US government defends its use of Section 702 and maintains that it does not target Americans or any other people located inside the country. The NSA also maintains that it has the authority to keep operating under Section 702 past the December 31 Congressional deadline, officials told The New York Times, since a FISA court authorized a one-year extension in April 2016.
More than four years since Snowden’s leaks, the debate over the government’s spying authority rages on.
Here’s how we got here and what lawmakers are doing about it:
2001: USA Patriot Act
A month after 9/11, Congress passed the USA Patriot Act, which, among a number of measures, improved information-sharing among federal agencies, beefed up border security, and expanded the FBI’s authority to search phone, email, and financial records without a warrant for national security purposes.
Many aspects of the law have since expired or been amended, but the landmark bill was only the beginning in the ongoing debate over the government’s spying powers.
2008: Section 702 becomes law
Congress established FISA Section 702 in 2008 when amended the Foreign Intelligence Surveillance Act of 1978. This was the provision Snowden leaked the info about.
A year earlier, former President George W. Bush signed the Protect America Act of 2007, which removed the requirement for the government to have to get warrants to track foreigners. This provision was reauthorized with the 2008 FISA amendments and became the crux of Section 702.
Congress renewed the measure in 2012.
2013: The Snowden leaks
The files revealed that Section 702 was being used to justify the PRISM program, which allowed the government to collect communications from tech companies through fiber-optic cables to then feed into a main database.
2015: USA Freedom Act
In the aftermath of the Snowden leaks, Congress quietly prepared to extend critical parts of the Patriot Act as its expiration approached in 2015.
On June 2 of that year, former President Barack Obama signed the USA Freedom Act into law. Although the bill was hailed as a reform of sorts to the government’s bulk data collection programs revealed by Snowden, it’s difficult to pinpoint exactly what it’s impact has been.
Earlier this year, Reuters reported that the NSA collected more than 151 million records of Americans’ phone calls in 2016, even after Congress purportedly limited the scope of the government’s data collection powers.
2017: Current proposals
The fact that there are several proposed bills floating around on Capitol Hill shows Congress is divided over how to move forward.
In October, Sens. Ron Wyden and Rand Paul introduced the bipartisan USA Rights Act, which aims to reform Section 702 and “end warrantless backdoor searches of Americans’ calls, emails, texts and other communications that are routinely swept up under a program designed to spy on foreign targets,” according to a press release from Wyden’s office.
Around the same time, a bipartisan group of representatives in the House introduced the USA Liberty Act, which keeps the 702 measure in place, but includes additional transparency requirements to protect Americans’ civil liberties and thwart abuse of the law. This bill would reauthorize 702 through 2023.
In June, Republican Sen. Tom Cotton called on Congress to reauthorize Section 702 “permanently, as is, with no changes.”
Lawmakers have until they leave for the holiday break on Friday to reauthorize Section 702 before it expires on December 31.