Bipartisan legislation introduced to Congress on Tuesday would overhaul a controversial surveillance law to require a warrant for searches of Americans’ data collected under the measure, a proposal that would significantly curtail the U.S. government’s sweeping surveillance powers.
The proposal is the first major piece of legislation introduced to renew Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire at the end of the year, and includes a range of proposals designed to modernize U.S. surveillance law and improve privacy protections.
The Government Surveillance Reform Act would broadly restrict the ability of the U.S. intelligence community to use its foreign intelligence powers to collect the communications of U.S. citizens. It would also require a warrant for the government to purchase data from data brokers, who often sell highly personal data with few privacy protections. The bill contains a range of exceptions to its warrant requirements, allowing law enforcement and intelligence agencies to access data collected under Section 702 in emergency situations without having to first obtain a warrant.
“Americans understand that it is possible to confront our country’s adversaries ferociously without throwing our constitutional rights into the garbage can,” Sen. Ron Wyden, D-Ore., said in remarks introducing the bill on Tuesday. “Our founding fathers made it clear that if government agencies want to read an American’s private communications, they should get a warrant.”
The introduction of the legislation, which is co-sponsored by nine Republicans and Democrats in the Senate and another 12 House representatives of both parties, puts its backers on a collision course with the White House.
Before the bill was even introduced on Tuesday, a senior administration official briefed reporters on what he described as its “unworkable” requirements. While cautioning that he hadn’t yet read the measure, he said the White House is firmly opposed to its key reforms and described a proposal to require a warrant for queries of U.S. person data collected under Section 702 as a “red line” for the Biden administration.
Currently, Section 702 allows intelligence agencies to collect the communications of non-U.S. persons abroad whose communications transit U.S. telecommunications systems. The program’s incidental collection of Americans’ data, which can then be searched by the FBI, has raised oversight concerns from civil liberties advocates and many lawmakers.
The tool has been repeatedly abused by the FBI, including to surveil Black Lives Matter protesters, donors to U.S. congressional campaigns and at least one sitting U.S. congressman and one U.S. senator. The FBI has said that it has strengthened its internal compliance mechanisms to cut down on misuse of Section 702 data, but civil libertarians argue that the long history of misuse of data collected under the law requires widespread reform.
The Biden administration and U.S. intelligence agencies say the sunsetting of the law, set to occur at year’s end, will deal a major blow to U.S. national security. The White House has in recent months declassified information about how the law is used and said that it has played a key role in preventing assassinations on U.S. soil, combating drug trafficking and preventing cyberattacks.
The PR effort from the White House has aimed to build political support for renewing the measure, but, so far, Tuesday’s legislation is the only measure introduced on Capitol Hill to renew the law. The White House has said it would be open to codifying in law the FBI’s internal reforms on how it handles Section 702, but Tuesday’s proposal represents a far broader overhaul.
Wyden said he is open to suggestions for how to improve the bill, but with a mere two months left until Section 702 expires, a packed legislative docket and a lower chamber in the throes of a leadership crisis, the reform effort faces an uncertain future.
Civil liberties groups immediately backed Tuesday’s measure, calling it an overdue update to American surveillance laws that were written in the age of the telephone and have failed to be updated to address the ways U.S. intelligence and law enforcement agencies acquire data today.
“We are proud to endorse the Government Surveillance Reform Act because it provides the smart, comprehensive safeguards we need to protect Americans’ civil rights and civil liberties from warrantless surveillance,” Jake Laperruque, the deputy director of the Center for Democracy and Technology’s Security and Surveillance Project, said in a statement.
Beyond warrant requirements for data collected on U.S. persons, the bill would also end so-called “about” collection under 702, which refers to the targeting of communications about a target but not sent to or from that target. The bill would also prohibit the targeting of communications of individuals located abroad in order to collect their communications with a person in the United States, and expand the role of amici curiae before the Foreign Intelligence Surveillance Court in a bid to provide greater oversight of U.S. surveillance operations.
Additionally, the bill would create a framework governing the use of so-called cell site simulators, which mimic the infrastructure used by cell phones to send and receive data in order to carry out surveillance. The bill broadly would require warrants for their use by U.S. law enforcement, but contains a number of carve-outs to allow for their warrantless use in national-security contexts.
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