Congress will soon decide the fate of the law that governs America's main foreign intelligence spying program. Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire this December 31st, requiring Congressional approval to reauthorize. This sunset and reauthorization is an opportunity to implement needed reforms. One of the most important is to end "back door" searches. This reform would require law enforcement agencies like the FBI to get a probable cause warrant approved by a judge before they search the vast troves of NSA communications data for evidence of crimes that can be used against U.S. citizens and lawful permanent residents.

End Backdoor Searches

Although Section 702 is seen by many as a necessary and useful tool in U.S. foreign intelligence and anti-terrorism operations, it has a glaring flaw when it comes to protecting the privacy of U.S. persons. When an intelligence agency like the NSA collects communications data under Section 702, it is supposed to be directed at foreign intelligence targets, someone suspected of being a Russian spy for example. However, if that target sends an email to someone within the U.S., all of the U.S. person's communications with the target can now be collected as part of "incidental collection." Then, law enforcement can search through the U.S. person's communications with the target for evidence of a domestic crime (i.e. non-terrorism related) without a warrant, simply because they communicated with a foreigner. This is known as a "backdoor search" because it circumvents the warrant requirement of the Fourth Amendment, one of our most important constitutional privacy protections.

There are currently several proposals floating through both houses of Congress, some of which close the backdoor fully, several of which do not. The most egregious version Senator Tom Cotton's proposal that would not only leave the backdoor wide open, but remove the sunset provision, effectively allowing the spy agencies to act this way in perpetuity. Senator Richard Burr's FISA Amendments Reauthorization Act of 2017 has no warrant requirement, while the House USA Liberty Act of 2017 requires a warrant but allows exceptions that could render it toothless. Fortunately, Senator's Diane Feinstein and Kamala Harris have introduced an amendment to create a full warrant requirement. This is only the first of several vital reforms.

Protecting Whistleblowers and American's Privacy

Whistleblowers have been crucial to bringing the abuses of the intelligence community and to light. For all its flaws, the House USA Liberty Act extends whistleblower protections to contractors, such as Edward Snowden, and not just regular intelligence community employees.

The other important issue is to oppose the revival of "about" collection that threatens the privacy of U.S. persons. Previously, the NSA would collection communications that merely mention a foreign intelligence target. Send an email to your cousin in France that mentions Osama Bin Laden? That would land your communication in an NSA database. The Foreign Intelligence Surveillance Court ended that practice, but Richard Burr's FISA Amendments Reauthorization Act of 2017 aims to bring it back.

Call to Action

It is up to you to call on Congress to protect our privacy. Contact your Senators and representative and tell them to:

1) End backdoor searches and institute a full warrant requirement in Section 702
2) Create whistleblower protections for intelligence contractors to let the truth come to light, and
3) Oppose "about" surveillance that would massively violate American's privacy.