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Key Vote Alert: Reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA)

Apr 16, 2024 by AFP

Dear Senator,

On behalf of Americans for Prosperity and the millions of activists we represent in all 50 states, I urge you to carefully consider the anticipated votes to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) and to oppose H.R. 7888 the Reforming Intelligence and Securing America Act (RISAA) absent significant changes.

Passed in 2008 by Congress, Section 702 of FISA granted the government greater powers to conduct surveillance of suspected foreign threats. However, Section 702 has become a go to resource for the government to access Americans’ communications without the proper protections afforded by a warrant. The FBI conducted up to 200,000 warrantless searches of the communications of American citizens in 2022 alone using the Section 702 database. These abuses are ongoing and will continue unless Congress enacts significant new safeguards.

The Reforming Intelligence and Securing America Act is misleadingly named and contains several provisions that dramatically expand surveillance of Americans and do nothing to prevent the abuses we have seen in recent years, such as spying on donors to a political campaign, participants in political protests, and even a sitting Member of Congress. Merely codifying existing practices by the intelligence community is insufficient to protect the privacy of Americans’ activities.

Most worrisome, the House adopted an amendment to the base bill that would dramatically expand the scope of Section 702 surveillance by changing the definition of entities covered as an electronic communications service provider. This represents the single greatest expansion to surveillance under Section 702 since the program’s inception. The amendment would allow the NSA to force a vast swath of companies to assist them in conducting surveillance under Section 702, as described by an adviser to the FISA Court (FISC) here. Notably, the original proposed amendment was so broad that it was revised to exempt named entities such as hotels and restaurants, while leaving off the exempted list numerous types of commercial establishments. Such non-exhaustive exemption lists are the epitome of sloppy legislating, and in this case presents a significant burden on businesses and a major threat to Americans’ privacy.

The House bill also expands the definition of “foreign intelligence” under FISA—which is already extraordinarily broad, encompassing any information that merely “relates to” the defense, security, or foreign relations of the United States­—to include distribution and financing of substances designated under the Controlled Substances Act. Information about the international trafficking of dangerous drugs like fentanyl already qualifies under the existing definition of “foreign intelligence,” which is why the government currently uses Section 702 to collect intelligence about fentanyl trafficking. Allowing the NSA to collect information about the international production, financing, and distribution of any controlled substance — including innumerable prescription medications with minimal abuse potential — would create a massive expansion of surveillance, unmooring “foreign intelligence” collection from the limiting principle of protecting U.S. safety and security. Additionally, the bill unnecessarily expands immigrant vetting by permitting warrantless searches of Section 702 data for all people seeking permission to travel to the United States, whether on student or work visas or as tourists or business travelers, even when there is no reason to believe they pose a risk to national security or possess foreign intelligence information. This invasive measure is wholly unnecessary given the multiple vetting mechanisms that already exist to ensure that visitors to this country do not threaten our national security, including, but not limited to, the use of Section 702 on foreign targets located abroad prior to travel to the United States.

The bill also runs contrary to what the Senate overwhelmingly voted in favor of just a couple years ago in the Leahy-Lee amendment, which strengthened the amicus process to the FISC, by undermining existing amicus procedures to limit the pool of eligible amici to those with intelligence community backgrounds and limiting the range of arguments amici can make to the FISC. With the numerous abuses uncovered and reviewed by both the FISC and the Privacy and Civil Liberties Oversight Board, the FISC clearly needs more privacy-minded arguments presented in proceedings, not less. Finally, the legislation also includes special protections for Members of Congress allowing them to consent to being a subject of querying the 702 database, a protection denied to millions of Americans. We simply cannot endorse the two-tier system of justice this legislation creates.

Recently, the FISC granted a full one-year certification for surveillance conducted under Section 702. As a reminder, current language in FISA explicitly states that should the authority lapse, surveillance could continue for the duration of any existing certifications granted by the FISC, meaning there is no imminent threat of our intelligence community “going dark”. The Senate still has ample time to carefully consider reauthorizing Section 702 in a manner that ensures the protection of the Fouth Amendment rights of every American, specifically by enacting a warrant requirement to use U.S. person search terms to query the 702 database for the communications of Americans that have been incidentally collected and closing the so called data broker loophole that enables the federal government to purchase data from third parties that would otherwise require a court order to obtain under existing law.

Section 702 is a powerful spying tool that is ripe for reform in ensuring the government can identify foreign threats while also safeguarding the Fourth Amendment rights of all Americans. RISAA takes our country in the opposite direction needed to properly restrain the intelligence community. Congress must not pass a bill that reauthorizes Section 702 that not only fails to include commonsense, bipartisan, and bicameral reforms to end abuses, but actually expands surveillance and ensures these abuses will multiply. In order to protect your constituents’ right to privacy, we will Key Vote “NO” on final passage of H.R. 7888 the Reforming Intelligence and Securing America Act in its current form.    

This vote will be recorded in our legislative scorecard. To see what other votes have been included, please visit AFP’s scorecard online at: AFPscorecard.org.

 

Sincerely,

Brent Gardner

Chief Government Affairs Officer

Americans for Prosperity

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