OTI Applauds Introduction of USA Rights Act to Reform Section 702

Today, Senators Wyden and Paul, along with nine cosponsors, introduced the USA Rights Act (S. 1997) to reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act. A companion bill was introduced in the House of Representatives by Representatives Lofgren, Poe, and O’Rourke. New America’s Open Technology Institute (OTI) applauds the introduction of this bill, which would address many of the most significant constitutional and policy concerns Section 702 surveillance raises. OTI recently joined a coalition letter signed by 42 organizations supporting the USA Rights Act. OTI’s recent series of timelines showing the scope and frequency of unintentional compliance violations with Section 702 targeting and minimization procedures demonstrates the need for OTI’s proposed reforms, the majority of which are included in this bill.

The USA Rights Act would not narrow the scope of surveillance under Section 702 as OTI has urged, so more work will still need to be done. However, it would take a first step toward narrowing that scope by providing much-needed transparency regarding the purposes for which the FISA Court authorizes Section 702 surveillance. The bill, which would reauthorize Section 702 for four years, also includes other significant reforms to enhance privacy protections and oversight, including:

• Requiring intelligence agencies to obtain a warrant based on probable cause before searching databases containing Section 702 information for Americans’ communications, closing the so-called “backdoor search loophole;”

• Limiting the types of investigations and prosecutions in which the government can use Section 702 data;

• Codifying the end to “about” collection through which the government previously collected not only communications “to” and “from” targets, but also communications that are simply “about” a target;

• Prohibiting the collection of communications known to be wholly domestic;

• Enhancing government transparency, including a requirement to provide a public estimate of the number of Americans’ whose communications have been collected under Section 702; and

• Allowing third parties to report on the national security demands they receive with more granularity.

The following statement can be attributed to Robyn Greene, policy counsel and government affairs lead at New America’s Open Technology Institute:

“We welcome the introduction of the USA Rights Act which would provide robust new protections for Americans’ privacy. Most importantly, the USA Rights Act would put an end to intelligence agencies’ routine warrantless searches for Americans’ communications that may be contained in collected Section 702 data. The bill’s strong, across-the-board warrant requirement for searches of Section 702 data has no exceptions that could swallow the rule, so it will ensure that these unconstitutional searches are stopped once and for all, and that Americans’ rights are better protected. As the House Judiciary Committee considers the USA Liberty Act, it should model its key protections on those in the USA Rights Act.”