In November 2023, over 30 civil liberties groups, Republican and Democratic members of Congress launched our best shot in a generation at reforming government surveillance: The Government Surveillance Reform Act (GSRA). The bill was introduced by Representatives Warren Davidson (R-OH) and Zoe Lofgren (D-CA) in the House, and Senators Ron Wyden (D-OR) and Mike Lee (R-UT) in the Senate.
The government conducts mass, warrantless surveillance of U. S. persons, partly authorized by the sunsetting Section 702 of FISA. GSRA would reauthorize Section 702 of FISA for four years, but accompanies that reauthorization with comprehensive reforms to the government’s surveillance powers. GSRA would require by default that the federal government get a warrant to query U. S. persons’ communications, whether through Section 702, or through other means like Executive Order (E.O.) 12333 or purchases from data brokers. It provides for exceptions to that warrant requirement in cases of emergency, malware, or where explicit consent is given. GSRA would also make it easier to litigate civil rights claims relating to surveillance, and would regulate government use of cell-site simulators and vehicle telematics data.
GSRA is the best opportunity in a generation to rein in the surveillance state. It is a careful, thoughtful bill that seeks to maintain the government’s ability to detect threats, while preserving the liberties so precious to us all.
Over the course of the coming weeks, we will be releasing a series of short summaries of GSRA’s provisions in the context of the issues they intend to address. Among other things, GSRA addresses reverse targeting, “abouts” collection, parallel construction, the data-broker loophole, stingrays, the Hemisphere program, and so much more, so we’ll take a look at how the legislation fixes each of these issues.
Click on the pages below to learn how the GSRA tackles specific issues in depth. You’ll also find general updates on FISA reform.
Why do we need the GSRA?
FISA Section 702 is a surveillance authority passed as part of the FISA Amendments Act of 2008. It provided Congressional sanction for the executive-branch warrantless surveillance programs established by the Bush administration after the September 11 attacks. Section 702 allows the Attorney General and Director of National Intelligence to authorize the targeting of “non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information” without a warrant. The statute’s sunset date is December 31, but the intelligence community gets annual program certifications under Section 702 from the Foreign Intelligence Surveillance Court, or FISC, every April; so the programs can lawfully continue to operate unreformed till those certifications expire on April 11, 2024.
Intelligence authorities and law enforcement officials abuse Section 702 and other surveillance authorities to warrantlessly access billions of collected communications, Americans’ real-time location information, Americans’ internet activity, and much more. The government collects this data in bulk, without a warrant, and in secret, with little judicial oversight.
As we’ve explained in our issue brief on FISA, “The amended FISA allowed for the use of “programmatic warrants”—not properly warrants at all, but court orders—which make a mockery of Fourth Amendment protections. The Fourth Amendment requires particularity; these court orders authoriz[e] surveillance on thousands of foreigners overseas at a time, including “incidental” collection on their contacts whether American or not, without any individualized FISC review of who the targets were.”
FISC approves broad surveillance programs without specific targets, and probable cause is very seldom sought or obtained, unless they are approving individualized Title I surveillance of U. S. persons. Americans who electronically communicate with targeted foreigners abroad will likely have their communications swept up in the NSA’s dragnet. This is what the intelligence community refers to as “incidental” collection. But make no mistake – it is anything but an accident. Incidental collection is factored into Section 702 surveillance programs as an acceptable risk to Americans’ civil liberties. Put simply, the NSA is collecting Americans’ communications, nominally for “foreign intelligence purposes,” that they would otherwise need a warrant to access.
Once Section 702 data is collected, other agencies may search those communications, for purposes including domestic law enforcement. Usually, they will justify the search on the basis of worries about “foreign influence” – but that just means that Black Lives Matter protesters and January 6 protesters and so on get their communications seized and queried, whether or not it’s at all plausible that Black Lives Matter protesters are an astroturfed foreign influence operation. These “backdoor searches” are a loophole around the Fourth Amendment, turning an ostensibly foreign intelligence program into a domestic surveillance program. There is a well-documented history of the FBI abusing backdoor search capabilities to warrantlessly surveil Americans.
Mass government surveillance also occurs through other avenues aside from FISA Section 702, like Executive Order (EO) 12333. EO 12333 contains no limits or protections for Americans outside U.S. borders. A lack of limits on EO 12333 means that intelligence agencies can collect the content of Americans’ communications “overseas”, meaning that they can be seized at the point that they are exiting the United States at packet-switching hubs controlled by AT&T and other large telecommunications firms. A U. S. person in Detroit may email a U. S. person in Florida, and the packets may transit Canada on the quickest path, resulting in a seizure opportunity by the NSA under EO12,333 authorities, even when both ends of the communication are a U. S. person located in the United States. We’re talking enormous volumes of traffic, and according to a document declassified by ODNI, U.S. agencies may retain this data for up to 5 years. EO 12333 is still shrouded in considerable mystery and not subjected to proper judicial or congressional oversight. We only know this information thanks to whistleblowers like Edward Snowden and John Napier Tye.
In June of this year, ODNI released a partially declassified report on the intelligence community’s purchasing of commercially available information (CAI) from data brokers. The report found that intelligence agencies were increasingly relying upon this “data-broker loophole” to circumvent Fourth Amendment or statutory protections (e.g. the Electronic Communications Privacy Act (ECPA)) for Americans’ personal data. For the government, it seems that where a warrant would be at all inconvenient, a credit card will do.
The GSRA holistically and comprehensively tackles this “warrantless surveillance ecosystem” in its provisions. In future posts in this series, RT4 will delve deeper into the issues that necessitated the GSRA, and pick apart what comprises mass government surveillance today.
Participate in RT4’s GSRA Campaigns:
Below you will find links to RT4’s current ongoing campaigns in support of the GSRA. These links will take you to our Action Network pages, where you can use our guided materials to send a letter to your representative. The first campaign listed is a general campaign anyone can participate in. The others are targeted campaigns aimed at getting the support of specific lawmakers with a strong pro-privacy voting record – if you find your representative listed below, we encourage you to send a letter.
- Ask your representative to co-sponsor the GSRA!
- Are you a constituent of Rep. Perry (PA-10)? Ask him to cosponsor the GSRA!
- Are you a constituent of Rep. Desjarlais (‘TN-4)? Ask him to cosponsor the GSRA!
- Are you a constituent of Senator Coons (DE)? Ask him to cosponsor the GSRA!
- Are you a constituent of Rep. Gosar (AZ-9)? Ask him to cosponsor the GSRA!
- Are you a constituent of Rep. Schweikert (AZ-1)? Ask him to cosponsor the GSRA!
- Are you a constituent of Senator Durbin (IL)? Ask him to cosponsor the GSRA!
- Are you a constituent of Senator Schumer (NY)? Ask him to support the GSRA!
- Are you a constituent of Senator Sullivan (AK)? Ask him to cosponsor the GSRA!