US Congress unveils bipartisan FISA Section 702 reform legislation

Looking to address uncertainty around renewing Section 702 of the U.S. Foreign Intelligence Surveillance Act, a group of bipartisan lawmakers from both chambers of U.S. Congress introduced sweeping legislation that would reform the law and institute more legal safeguards for intelligence agencies to access U.S. citizens' electronic communication data.  

Some of the reforms proposed in the Government Surveillance Reform Act include ending law enforcement's ability to purchase U.S. citizens electronic data from third parties without obtaining a search warrant. The proposal also raises a ban on so-called "reverse-targeting" when the monitoring of a foreign citizen outside the U.S. is used as a pretext to surveil a U.S. citizen. The intelligence community would take on new oversight requirements for stricter reporting and auditing of agencies' data collection practices.

"Decades ago, when Congress first wrote the surveillance laws, it focused on the way surveillance was conducted back then, which was largely by having government agents demanding assistance from the telephone company," said U.S. Sen. Ron Wyden, D-Ore., a co-sponsor of the legislation. "Today, we're part of a global communications network, and government agencies can collect Americans emails and texts in all sorts of new ways. That includes surveillance under Section 702, Executive Order 12333, and by purchasing Americans personal information from all kinds of shady, unregulated data brokers."

No 'clean' 702 renewal

Section 702 expires at the end of 2023, and U.S. President Joe Biden's administration has pushed for a "clean" reauthorization without instituting additional requirements to obtain search warrants to review communications data.  

However, according to The Hill, with enough public opposition to renewing Section 702, members of the U.S. House discussed the possibility of a "short-term extension" last week due to partisan political dynamics in the House.

"Even in the best of times, obviously (Section) 702 is a heavy lift," U.S. Rep. Jim Hines, D-Conn., told The Hill. "Pretty much all of the Plan Bs involve a temporary extension because … we cannot allow this authority to expire."

Between the news last week and Tuesday’s announcement, probability of a clean Section 702 renewal in a form suitable to the Biden administration appears unlikely.

U.S. Sen. Mike Lee, D-Utah, summed up the position of many of the renewal-as-is opponents in Congress at the conclusion of the 7 Nov. press conference, while also stating his opposition to folding in some reform provisions into an omnibus bill or a continuing resolution.

Additionally, other lawmakers that spoke during the press conference expressed their opposition to including some form of a Section 702 renewal in either a forthcoming omnibus spending bill or continuing resolution.

"Anyone still deluding themselves into thinking that a clean reauthorization of 702 is on the table, it's not," Lee said. "It doesn't matter whether (citizens) align left, right center. They're worried the people they've elected to represent them in the Congress are eager to come in here and just reauthorize this thing without any modifications."

The announcement of a bipartisan and bicameral framework to reform Section 702 comes following a report issued by the U.S. Privacy and Civil Liberties Oversight Board in September that was approved by a 3-2 vote along partisan lines. The report outlined 19 privacy and oversight recommendations for Congress to consider as part of a reauthorization debate.

Opposing the PCLOB report were the two Republican-appointed board members, which suggested a tough reauthorization fight could still loom.

"The Board concludes that although the Section 702 program presents serious risks to, and actual intrusions upon, the privacy and civil liberties of both Americans and non-Americans, the United States is safer with the Section 702 program than without it," the report stated. "The Board further finds that the most serious privacy and civil liberties risks result from U.S. person queries and batch queries, and the government has not demonstrated that such queries have nearly as significant value as the Section 702 program overall."

Civil rights groups joined lawmakers in acknowledging proposed legislation represents the only concrete proposal in Congress to renew Section 702 in some form.

"Now that reauthorization of Section 702 has been made difficult by the politically diverse community of advocates and lawmakers demanding common sense to protect Americans from warrantless surveillance, the intelligence community has become more willing to listen, however, they have only put forward unacceptable half measures," Due Process institute Director of Rule of Law Initiatives Jason Pye said during the 7 Nov. press conference. "The Government Surveillance Reform Act is the only path forward to protect Americans from warrantless surveillance."

EU-US Data Privacy Framework impacts

One area of FISA not addressed in the press conference was how the GSRA could impact U.S. law enforcement and intelligence agencies' ability to access the electronic communications data of non-U.S. citizens, which has taken on greater interest since Biden signed an executive order adopting the EU-U.S. Data Privacy Framework.

The EU-U.S. DPF is currently subject to at least one legal challenge in the EU, however, some experts believe it may be more resilient than past EU-U.S. transfer agreements because of the establishment of the U.S. Data Protection Review Court, in part. However, in order to have standing in that court, the individual seeking redress must reside in a jurisdiction that has agreed to the DPF.

In a recent Lawfare blog post, Brookings Institution Distinguished Visiting Fellow in Governance Studies Cameron Kerry wrote that U.S. lawmakers working on Section 702 reform should look to enshrine some of the baseline protections afforded to non-U.S. citizens in Biden's executive order adopting the EU-U.S. DPF.

"Incorporating the (data privacy) safeguards (for foreign citizens) into law would advance emerging norms on government access in a digitized world that functions on instantaneous transmission of terabytes of rich information," Kerry wrote. "It is in the interest of the U.S. and other open and democratic societies and economies that this transmission be trusted and safe everywhere."