A bill that would extend for six years authority for intelligence agencies to conduct digital communications surveillance on foreigners abroad passed the Senate Jan. 18 on a 65-34 vote.
It is likely that President Donald Trump will sign the bill before Foreign Intelligence Surveillance Act (FISA) Section 702 authority expires Jan. 19. The White House put its support behind the FISA Amendments Reauthorization Act (S. 139) after the House approved the bill Jan. 16.
The bill would continue authority under FISA Section 702 for the National Security Agency to conduct communications surveillance on foreign citizens not on U.S. soil. Communications gathered by the NSA are often used by the FBI and the Department of Justice in national security investigations, and other cases under certain circumstances. The bill would also provide protections for intelligence community contractor whistleblowers.
The bill added a requirement that the FBI get a court order to review data of U.S. citizens that was collected for national security purposes for use in an ongoing criminal investigation. That may be helpful to regain trust in the intelligence community, and limit how and when collected data can be used against U.S. citizens.
Even those that oppose the bill don’t disagree that intelligence collected under FISA Section 702 authority can be useful in preventing terrorist attacks and other national security threats, Marcus A. Christian, former executive assistant U.S. attorney and cybersecurity partner at Mayer Brown LLP in Washington, told Bloomberg Law Jan. 18. However, it will be imperative on the intelligence community to “not exploit” these powers and protect the privacy rights of U.S. citizens, he said.
FBI Director Christopher Wray and others in the intelligence and law enforcement community “understand that it is not only important to have these surveillance tools for national security, but also believe in the protections included under the law,” Christian said.
Some lawmakers, including Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.), had pushed back against the bill because they said it doesn’t offer enough privacy and civil liberties oversight protections. However, the bill actually adds some privacy protections and enhances the operation of an important privacy oversight board, former U.S. officials told Bloomberg Law.
Under the bill, the Privacy and Civil Liberties Oversight Board (PCLOB) can act without a quorum or a chairman, Kendall Burman, former special assistant to President Barack Obama and associate White House counsel and current privacy counsel at Mayer Brown LLP in Washington, told Bloomberg Law Jan. 18.
The board, which is tasked with overseeing executive branch national security initiatives to ensure that privacy and civil liberties issues are addressed, hasn’t been able to take up new business since members left after Obama’s term ended. The PCLOB is an important oversight mechanism for international surveillance allies, Burman said. Further, PCLOB reports could help ease concerns that the U.S. is conducting mass surveillance without authority, she said.
Opponents of the bill argued that FISA Section 702, without an overhaul, continues to allow warrantless surveillance of U.S. citizens.
The bill gives the National Security Agency power to compel internet companies, such as Alphabet Inc.’s Google, Facebook Inc., and Twitter Inc., and service providers, such as AT&T Inc. and Verizon Communication Corp., to disclose electronic communications, Harold Li, vice president of virtual private network provider Express VPN International Ltd., told Bloomberg Law. The onus is put on businesses to be “the last line of legal defense, pushing back on overly broad requests and demanding reform,” he said.
One way to quell such concerns is to provide more transparency to secretive FISA Court orders, Li said. The intelligence community needs FISA Section 702, but surveillance should be done with search warrants and sufficient oversight and transparency, he said.
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