The debate over the surveillance powers granted by Section 702 of the Foreign Intelligence Surveillance Act (FISA) has intensified with various legislative proposals aiming to amend how these powers are implemented. Among these, the House Permanent Select Committee on Intelligence (HPSCI) bill stands out for its more conservative approach towards reform, particularly when compared to the proposals from the House Judiciary Committee and other more reform-oriented legislative efforts. This article delves into the specifics of the HPSCI bill, examining its potential implications for privacy and national security.

https://www.myprivacy.blog/reimagining-surveillance-in-the-age-of-privacy-the-role-of-risaa-in-modern-cybersecurity

Key Provisions of the HPSCI Bill

Expanding Entities Required to Assist Surveillance

The HPSCI bill proposes to significantly expand the range of entities that can be compelled to assist in Section 702 surveillance. This includes not just traditional telecommunications firms but potentially any service provider with access to significant amounts of data, such as commercial landlords and other non-telecom businesses. Critics argue that this expansion could effectively turn these entities into de facto agents of government surveillance, raising serious privacy concerns and potential abuse scenarios.

https://www.compliancehub.wiki/analyzing-the-reforming-intelligence-and-securing-america-act-risaa-balancing-surveillance-and-civil-liberties

Modifying the Warrant Requirement for U.S. Person Queries

Under current guidelines, the FBI and other agencies can query the data collected under Section 702 for information about U.S. persons without a warrant in many cases. The HPSCI bill introduces a stipulation that warrants are only required for queries where the search is “exclusively” for evidence of a crime. This nuanced language means that if a query has both a foreign intelligence purpose and a criminal purpose, a warrant would not necessarily be required. Critics suggest that this represents only a minor change from current practices and does not adequately protect U.S. persons from warrantless searches.

Broadening the Definition of “Foreign Intelligence”

Another significant change proposed by the HPSCI bill is the expansion of what constitutes “foreign intelligence.” By including counter-narcotics efforts, the bill could potentially broaden the scope of Section 702 surveillance to encompass individuals and organizations that are not traditionally considered national security threats, such as journalists investigating international drug cartels. This broadening could lead to increased surveillance of individuals based overseas, indirectly affecting U.S. citizens and residents who communicate with such targets.

https://www.myprivacy.blog/section-702-and-fisa

Comparison with Other Legislative Efforts

In contrast to the HPSCI bill, the House Judiciary Committee has advocated for more stringent reforms. These include a robust warrant requirement for all U.S. person queries and closing the “data broker loophole,” which currently allows agencies to purchase commercially available data that might otherwise require a warrant to collect.

The Reforming Intelligence and Securing America Act (RISAA), considered a compromise between these competing views, tilts closer to the HPSCI bill, according to some critics. This has sparked a debate about whether the proposed reforms under RISAA are sufficient to address the privacy concerns raised by civil liberties advocates.

Implications for Privacy and Security

The HPSCI bill’s approach reflects a particular legislative caution aimed at maintaining the intelligence community’s capabilities without significant curtailment. However, this approach has raised concerns among privacy advocates, who argue that it does not go far enough to protect individual rights. The expansion of entities involved in surveillance and the nuanced requirements for warrants could potentially lead to overreach and misuse of collected data.

Critics of the bill argue for a need for clearer safeguards and more stringent oversight mechanisms to prevent potential abuses. They advocate for a balance that does not unduly hinder the intelligence community but ensures robust protections for civil liberties.

Warrantless Queries of U.S. Person Information

RISAA does not require the intelligence community to obtain a court order before querying Section 702 data for information about U.S. persons (Americans). Instead, it prohibits the FBI from conducting U.S. person queries “that are solely designed to find and extract evidence of criminal activity,” with some exceptions.3 This is less restrictive than bills like the Government Surveillance Reform Act (GSRA), which would generally require a warrant for U.S. person queries.4

Expansion of Entities that Can Assist Surveillance

A concerning provision in RISAA is that it “dramatically expands the universe of entities that can be compelled to assist the government in conducting Section 702 surveillance.”1 This could allow the government to use commercial landlords and other private entities as de facto surveillance agents, which critics argue poses a serious threat to civil liberties and democracy.1

Lack of Robust Reforms

While RISAA includes some reforms to Section 702, such as prohibiting certain FBI queries, critics argue that the bill “strongly resembles the House Permanent Select Committee on Intelligence (HPSCI) bill, which focuses more on expanding surveillance than reining it in.”2 Groups like EPIC have called for more robust reforms, such as a warrant requirement for backdoor searches and closing the “data broker loophole.”2

Expands Entities Required to Assist Surveillance

The HPSCI bill “dramatically expands the universe of entities that can be compelled to assist the government in conducting Section 702 surveillance.”1 This could allow the government to use a wide range of private entities, like commercial landlords, as de facto surveillance agents.1

Weakens Warrant Requirement for U.S. Person Queries

The HPSCI bill would only require a warrant for FBI queries of Section 702 data when the search is “exclusively” for evidence of a crime. In most cases, queries can have both a foreign intelligence and criminal purpose, so this represents a very narrow warrant requirement.4

Expands Definition of “Foreign Intelligence”

The HPSCI bill would broaden the already-broad definition of “foreign intelligence” to include counter-narcotics. This could extend surveillance to the overseas sources of journalists covering topics like drug cartels.4

Conclusion

As the debate over the reauthorization and reform of Section 702 continues, the HPSCI bill remains a pivotal piece of legislation. Its implications for both national security and privacy rights will likely continue to be a subject of significant discussion and contention among lawmakers, privacy advocates, and the intelligence community. The evolving landscape of global digital communication and surveillance necessitates a nuanced approach that carefully considers both the efficacy of intelligence operations and the protection of individual privacy rights.

Resources:

https://chicago.suntimes.com/letters-to-the-editor/2024/04/16/dick-durbin-surveillance-power-fisa-college-affordabilty-trump-letters

https://www.nytimes.com/2024/04/16/us/fisa-surveillance-bill-program.html