First take on Section 702 surveillance reform: progress on human rights, but more is needed

Today, Representatives Goodlatte, Conyers, Sensenbrenner, and Jackson Lee of the U.S. Congress announced legislation to amend and update Section 702 of the FISA Amendments Act prior to its sunset at the end of this year. Access Now welcomes this as a discussion draft of a bill, but encourages the Congress to implement much stronger reforms before passing it into law. The bill is called the “Uniting and Strengthening American Liberty Act of 2017,” or “the USA Liberty Act of 2017” (at least they didn’t try to make “liberty” an acronym).

It is appropriate that the title of the bill refers to “American liberty,” because it does very little to protect the rights of the remaining 95% of the global population, most of whom will never be involved in criminal or terrorist activity. However, we find some hope in a few provisions that will have a positive impact on the rights of so-called non-U.S. persons, including:

  • Limits on queries of the databases of information collected under Section 702 to those with a legitimate national security or law enforcement purpose. Legitimate aim is one of the core human rights principles governing communications surveillance.
  • Codification of the prohibition of acquisition of information that is not to or from an intelligence target, a limitation first imposed by the Foreign Intelligence Surveillance Court earlier this year.
  • Increased involvement of the amicus curiae established in 2015’s USA FREEDOM Act in the certification process for Section 702 surveillance programs.
  • Reporting to relevant congressional committees on the instances of dissemination of communications collected under Section 702 to other intelligence agencies for purposes other than national security or foreign intelligence.
  • A provision providing a “sense of Congress” that Section 702 should respect “norms of international comity” and avoid targeting foreign individuals (an undefined term) based on “unfounded discrimination” or to obtain “commercial advantage.” This appears to be an attempt to codify a small portion of Presidential Policy Directive 28, issued under President Obama and recognizing, for the first time, privacy interests (but not rights) of non-U.S. Persons.

We applaud the bill’s sponsors for the leadership they have shown in drafting this bill, and do not want to cheapen the significance of these changes — they represent definite improvements over the current state of the law.

However, it is disappointing that these changes fall far short of those that Access Now endorsed last December. At the time, we pointed out that our recommendations would themselves represent only a small step toward meaningful reform to protect human rights. During the markup process we strongly encourage the sponsors of this bill and other members of Congress to further strengthen these provisions as well as to consider including additional protections, such as striking the encryption exception to current data retention limitations. We believe these additional changes are necessary not only for human rights but also to preserve transatlantic data transfer arrangements like the E.U.-U.S. Privacy Shield and others that are under review by the Court of Justice of the European Union.