Put Mass Surveillance To Bed: Urge Congress to Support Wyden-Paul USA RIGHTS Act Instead of “USA Liberty Act”

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Section 702 Lets Spy Agencies Snoop on Americans – Without a Warrant.

In an end run around the Constitution, spy agencies have warped Section 702 of the FISA Amendments Act into a way to unconstitutionally snoop on Americans.

The law was intended to allow intelligence agencies to monitor communications of foreign individuals outside the United States. But spy agencies like the NSA have claimed this authority allows them to scan through and collect the emails and phone calls of innocent Americans. Then, the government routinely does “backdoor searches” of this information, where they may look up information about U.S. persons, even for reasons completely unrelated to intelligence gathering.

It’s the same law the NSA claims justified the scandalous programs uncovered by Edward Snowden, like the PRISM program, which forces tech companies to turn over data on their servers, and Upstream collection, which automatically searches all internet traffic that crosses tapped lines connecting the U.S. with the rest of the world.

Flying in the face of the Fourth Amendment, the government searches this information specifically for Americans at least tens of thousands of times a year without a warrant, without evidence of a crime, and without independent oversight.

The so-called “USA Liberty Act” (H.R. 3989), which was recently introduced in the House, should be significantly improved to match the forthcoming strong surveillance reform being proposed by Senators Wyden and Paul. We’re disappointed that strong reformers in the House, such as Rep. John Conyers and Rep. Jerrold Nadler, have allowed their good name to be used to give the impression that the “USA Liberty Act” is anywhere near what is needed. Here’s why it falls so far short:

H.R.3989 doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on U.S. soil – all without a warrant. Instead, the bill okays accessing and sharing this information for foreign intelligence purposes, a loophole big enough to drive a truck through.

It fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target. Collections should be limited to communications that are “to” or “from” a target.

It doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

It doesn’t stop Section 702 information from being used in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.

It gives the NSA too many free passes. The bill adds some transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports to Congress, and only a small amount of information would trickle out to the public. And there’s no independent oversight into how President Trump and Attorney General Sessions interpret the law.

 

Spying Powers Are Already Being Abused. Under Trump Things Could Get Far Worse

Even before an authoritarian like Trump came to power, the spying powers on the books were consistently abused. The government has shown a persistent inability to follow rules that are supposed to protect Americans, as chronicled in a 2017 report by Demand Progress. Judges on the FISA Court have called the violations “a very serious Fourth Amendment issue” and complained of “an institutional ‘lack of candor’” from the spy agencies.

Surveillance powers are still being turned against activists and people of color. Muslim student associations on college campuses are infiltrated and disrupted; protesters against pipelines at Standing Rock and elsewhere are targets; and Trump’s FBI just this month was revealed to have created a new designation of “black identity extremists” to target the Black Lives Matter movement. With Trump’s clear authoritarian impulses and tendency to target vulnerable populations, Congress extending these spying powers to Trump would be catastrophic.

 

Sen. Ron Wyden and Sen. Rand Paul Get It Right with the USA RIGHTS Act

By comparison, the USA RIGHTS Act is expected to end backdoor searches, permanently ban “about” collection, and provides notice when intelligence information is used in criminal proceedings. It also is expected to contain a number of additional important provisions, including strengthening transparency around FISA court opinions, preventing solely domestic surveillance under Section 702, and much more.

 

New “USA Liberty Act” Doesn’t Fix Problem of Mass Surveillance on Americans

NSA

October 5, 2017USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue

On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.

The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.

“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1

An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2

The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.

Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4

This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.

1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.

 

Contact:
Alex Marthews
National Chair, Restore the Fourth
rt4chair@protonmail.com
781-258-2936

Jonathan Capra
Communications Chair,
Restore the Fourth
fongaboo@protonmail.com