In a loss for American privacy rights, the House of Representatives voted down an amendment to the minibus that would have reined in abuse of Section 702 of the Foreign Intelligence Surveillance Act. Since Edward Snowden revealed the massive reach of the National Security Agency, Section 702 has been exposed as allowing the NSA to warrantlessly collect data of US persons. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.) introduced an amendment to remedy this. It was defeated 175-253 as both Republicans and Democrats found common ground in continuing to protect the expansive surveillance state .
Section 702 focuses on the NSA’s ability to intercept communications from foreign intelligence targets outside the United States, something that requires no warrant. Searches under Section 702 have been shown to catch the data of 9 to 10 unintentional people when used to search targets. This is called “incidental collection” and includes the communications of US persons for whom a warrant would have been required to obtain. The incidentally collected communications, including that of US persons, isn’t thrown out, but is instead stored for other agencies to use. Under so-called “backdoor searches,” agencies, including the FBI and DEA, search these communications without ever obtaining a warrant.
The backdoor searched used by the NSA and other agencies allow them to collect data on US persons without a warrant, violating the 4th amendment. Section 702 was renewed in 2018 in a bipartisan effort, much in the way that the amendment was rejected by members of both parties.
The Lofgren-Amash amendment sought to fix this. The amendment would have prevented the targeting of people outside the United States with the intent to collect information on US persons. In addition it would have prevented the NSA from collecting data with no target (known as “about collection:”) , and stopped data collection of people who are known to be within the United States. Although hardly a full repeal of Section 702, the amendment would have prevented some of the more blatant civil liberties violations.
We’ve constantly opposed these draconian surveillance laws, hosting a briefing on the section 702, and helping push action against the overreaches of FISA in Congress. Sean Vitka and Daniel Schuman wrote in Just Security explaining that “in our view, [Section 702] permits significant offenses against Americans’ civil liberties. Section 702 authorizes two truly alarming efforts that must be reformed or ended.” These tools give the NSA and other agencies the ability to surveil millions, while paving the way for unconstitutional and dangerous actions.