USA RIGHTS Act: Reforming and Reauthorizing Surveillance Under FISA Section 702 For 4 Years (S. 1997)

What is S. 1997?

(Updated November 16, 2018)

This bill — known as the USA RIGHTS Act — would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits intelligence agencies’ collection of electronic communications by non-U.S. persons outside of the U.S. for national security purposes, for four years through 2021. It would make permanent the current ban on the collection of “about” communication regarding a target permanent, prohibit the collection of domestic communications, require a warrant for all searches of Section 702 data, and make reforms to improve oversight and transparency. Additionally, it would prohibit the use of Americans’ data collected under Section 702 in any criminal, civil, or administrative proceeding except for crimes directly related to national security, like terrorism and espionage.

The bill would prohibit “back door searches” of Section 702 for communications of or about a U.S. person or a person inside the U.S. without a warrant. The prohibition wouldn’t apply in case of life-threatening emergencies, or when the target of the query has consented to the query based on an emergency that’s followed by a court order.

The bill would prevent “reverse targeting” of Americans by requiring a warrant whenever a significant purpose of the targeting of foreign persons is to collect the communications of someone in the U.S. Currently no warrant is required unless the sole purpose of the surveillance is to collect the American’s communications.

The Foreign Intelligence Surveillance Court (FISC) would be required to seek the assistance of an amicus curiae (an impartial advisor to the court) when reviewing applications for warrants to search Section 702. Amici curiae would be authorized to raise any issue with the FISC at any time, and would have to be notified when new amici are designated so that they can coordinate their reviews and input.

Opinions issued by FISC regarding significant interpretations of law or statutory language would have to be declassified as required by the USA FREEDOM Act of 2015. Currently the Justice Department has only declassified such opinions if they occurred after the bill’s enactment.

The Director of National Intelligence (DNI) would be required each year to provide statistics on the number of persons targeted under each Section 702 certification, along with an estimate of the number of U.S. persons whose communications were collected. An exception to this requirement would be permitted if DNI determines that such an estimate would be technically impossible and publishes an unclassified explanation of that finding.

Argument in favor

This bill strikes an appropriate balance between liberty and security by letting intelligence agencies continue their surveillance under FISA Section 702 for four years with reforms to require that warrants are obtained before Americans’ information can be accessed and greater transparency.

Argument opposed

This bill handcuffs the ability of intelligence agencies to easily access communications under FISA Section 702 and therefore weakens the national security. Alternatively, Section 702 shouldn’t be reauthorized at all and should be allowed to sunset to protect Americans’ civil liberties.

Impact

Americans whose data would be collected; intelligence agencies; the FISC; and Congress.

Cost of S. 1997

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Ron Wyden (D-OR) introduced this bill to reauthorize and reform surveillance activities under FISA Section 702:

“Without common-sense protections for Americans’ liberties, this vast surveillance authority is nothing less than an end-run around the Constitution. Our bill gives intelligence agencies the authority they need to protect our country, but safeguards our essential freedoms with new provisions requiring judicial oversight and pushing back on the creeping expansion of secret law.

Original cosponsor Sen. Rand Paul (R-KY) added:

“Congress must not continue to allow our constitutional standard of ‘innocent until proven guilty’ to be twisted into ‘if you have nothing to hide, you have nothing to fear.’ The American people deserve better from their own government than to have their Internet activity swept up in warrantless, unlimited searches that ignore the Fourth Amendment. OUr bill institutes major reforms that prove we can still protect our country while respecting our Constitution and upholding fundamental civil liberties.”

This legislation has the support of 14 bipartisan cosponsors in the Senate, including 10 senators who caucus as Democrats and four Republicans.

Media:

• Sponsoring Sen. Ron Wyden (D-OR) Press Release
  
• Sen. Wyden One-Pager
  
• Section-by-Section
  
• Reason
  
• Washington TImes
  
• Electronic Frontier Foundation (In Favor)