House Judiciary Committee Introduces Weak Surveillance Reform Bill

Better late than never, there finally appears to be some Section 702 reform efforts underway in Washington DC. Tech companies have been oddly silent over the last several months, allowing the government to fill the void with demands for a clean, forever reauthorization.

The reform bill [PDF], titled the USA Liberty Act, allows for the renewal of Section 702 authorities, but with some minor alterations. First off, the bill codifies the NSA's voluntary shutdown of its "about" email collection. If passed intact, the bill would prevent the NSA from collecting "about" communications until 2023. It also adds some warrant requirements for searches of 702 content by law enforcement agencies, including the FBI.

The warrant requirement doesn't change anything for collection access for "foreign intelligence" reasons, but at least elevates law enforcement access requirements, bringing it in line with the more-stringent demands of wiretap applications. This will hopefully prevent the government from browsing harvested communications for evidence of minor criminal activity.

Agencies like the FBI will still have warrantless access to 702 metadata but, importantly, won't be able to use this metadata as the sole source of probable cause when requesting a warrant. Unfortunately, this access will have little to no oversight as the FBI won't be required to run its metadata search plans past a court first.

These make Section 702 access a bit more restricted but, as the ACLU points out, it doesn't completely close the government's backdoor search loophole.

The bill would still allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge. Those worried that current or future presidents will use Section 702 to spy on political opponents, surveil individuals based on false claims that their religion makes them a national security threat, or chill freedom of speech should be concerned that these reforms do not go far enough.

There are a few more positive to the bill as written. It requires semi-annual reporting on incidentally-collected communications -- information the ODNI still hasn't turned over to oversight committees despite years of requests.

It also extends whistleblower protections to government contractors, something that has been pointed out repeatedly but ignored by legislators when crafting whistleblower bills.

On the downside, it increases the penalty for the unauthorized removal of sensitive documents to five years in prison (up from one year) and adds an additional charge for prosecutors to toss at whistleblowers and leakers: negligent removal of classified documents.

It's certainly better than the nothing legislators have been offering for months, but it needs more work before it can be considered anything more than a minor facelift. A warrant requirement is nice, but essentially meaningless when the FBI and other agencies can still access what they're looking for without having to speak to a judge.