Draft legislation before the House Intelligence committee puts new restrictions on the use surveillance powers to target Americans, but privacy advocates are looking for more reforms.
On Oct. 5, the House Judiciary Committee unveiled legislation to reform the way intelligence agencies can use surveillance tools, with an eye to keeping more Americans out of the dragnet.
The USA Liberty Act would revise Section 702 of the FISA Amendments Act to increase transparency and oversight and make it more difficult for law enforcement organizations to use information gathered on Americans.
The big issue for privacy advocates inside and outside of Congress is the capture and subsequent use of information on U.S citizens and residents by spy agencies who are targeting foreign actors.
"While Congress designed this authority to target non-U.S. persons located outside the United States, it is clear the section 702 surveillance program can, and does, incidentally collect information about U.S. persons when they communicate with the foreign targets of Section 702 surveillance,” said Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee.
Ranking member John Conyers (D-Mich.) indicated that there was little appetite within Congress for a clean reauthorization of the FISA Amendments Act, which is set to expire at the end of the year.
"I believe that we must make these reforms if we are to convince a critical mass of our colleagues that section 702 should be reauthorized at all," said Conyers in a statement.
The authors of the USA Liberty Act say their legislation closes the incidental collection loophole by prohibiting the government from accessing or disseminating Section 702 content to advance a non-terrorism-related criminal investigation without probable cause.
The bill also requires the intelligence community to update Congress twice a year on the number of U.S. persons whose communications have been incidentally collected.
Speaking at a national security conference in September, NSA Director Adm. Mike Rogers admitted that the law as written leads to the collection of Americans' communications, but stressed that current internal and external oversight measures were sufficient to protect against abuse.
"We acknowledge that in the course of the conduct of 702, we will undoubtedly run into U.S. persons’ information, which is why we have put several protections in place, from a court of law to congressional oversight, to who can access the data, to how we’re allowed to use the data, to ensure we’re providing the appropriate protections," Rogers said.
In a statement, the American Civil Liberties Union said the bill was "an improvement over current practice" but falls short of closing the backdoor search loophole by allowing access to 702 content about Americans for foreign intelligence purposes without a warrant.
"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," said ALCU Legislative Counsel Neema Singh Guliani.
The bill is a starting point for a broader debate taking place within the House and Senate regarding how to amend and pass a reauthorization of the FISA Amendments Act.
“What we have produced so far is a compromise," Rep. Jerrold Nadler (D-N.Y.) said. "It contains many provisions but may also need improvements. We welcome the input of the intelligence and civil liberty communities to produce a more perfect bill."