Reauthorizing Surveillance Activities Under FISA Section 702 Through 2025 (S. 2010)

What is S. 2010?

(Updated July 9, 2018)

This bill would extend the Foreign Intelligence Surveillance Act (FISA) — including Section 702 — for eight years, replacing the current sunset date of December 31, 2017 with a new sunset date of December 31, 2025. It would also make permanent the ban on the upstream collection of “about” communication data regarding a target, provide an exemption to the ban, while reforming identity minimization and querying procedures. Section 702 allows the collection of foreign intelligence information but brings in communications of U.S. persons in the process.

It would codify the Intelligence Community’s (IC) existing ban on the collection of “about” communication regarding a target into law. An exemption would allow the Director of National Intelligence (DNI) and Attorney General to resume collection of “about” data after notifying the Foreign Intelligence Surveillance Court (FISC) and Congress, which could then consider legislation restoring the ban.

The FISC would be required to appoint an amicus curiae (an impartial legal advisor) if the IC seeks reauthorization of “about” data collection unless it determines that an appointment is unnecessary. The amicus curiae would be compensated by FISC if appointed.

The Federal Bureau of Investigation (FBI) would only be authorized to use information gained under FISA Section 702 in court proceedings involving national security-related crimes. The IC would be required to report on the number of targets the FBI has authority to surveil, including the number who are U.S. citizens and the number who aren’t. The report would also include how many times the FBI queried Section 702 data, how many criminal investigations were opened as a result, and the number of criminal proceedings in which the FBI intended to use the FISA-derived information.

The Attorney General and DNI would be required to develop querying procedures that would be reviewed annually for data collected under Section 702. The procedures would have to ensure the retention of records of all queries using an identifier associated with a known U.S. person. Additionally, the Attorney General and DNI would assess compliance with those procedures in the semi-annual assessments provided to congressional intelligence and judiciary committees.

The FBI would have to submit any query that returns information regarding a known U.S. person to the FISC within one business day along with the information and justification for the query. WIthin the next two business days, the FISC would have to review the query submissions for compliance with the Constitution’s Fourth Amendment, and if it didn’t comply the government would be barred from using it in court proceedings.

Argument in favor

This bill would improve judicial and congressional oversight of the government’s queries of metadata it collected from U.S. citizens, while striking an appropriate balance between privacy and civil liberties concerns.

Argument opposed

This bill doesn’t do nearly enough to protect Americans’ civil liberties and would ultimately allow intelligence agencies to continue gathering data, which FBI could use in its criminal investigations.

Impact

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

Cost of S. 2010

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Richard Burr (R-NC) introduced this bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act so that intelligence agencies can continue using the tools it affords them:

“This bill reauthorizes our nation’s most valuable intelligence collection authorities and ensures that the men and women of the Intelligence Community and our law enforcement agencies have the tools and authorities they need to keep us safe.  It represents the collective effort of the Committee’s membership and is the result of extensive discussion and debate that began with an open hearing this past summer.  The bill not only enhances national security but also includes provisions that increase the privacy protections of American citizens, increases the penalties for leakers of classified information, and strengthens the Privacy and Civil Liberties Oversight Board.”

The Electronic Frontier Foundation has expressed opposition to this bill, saying it “squanders several opportunities for meaningful reform and, astonishingly, manages to push civil liberties backwards.” It added that the bill “uses Section 702’s sunset as an opportunity to codify some of the intelligence community’s more contentious practices while also neglecting the refined conversations on surveillance happening in Congress today.

This legislation passed the Senate Intelligence Committee on a vote of 12-3, with Sens. Ron Wyden (D-OR), Martin Heinrich (D-NM), and Kamala Harris (D-CA) opposing it.

Media:

• Sponsoring Sen. Richard Burr (R-NC) Press Release
  
• Cosponsoring Sen. Angus King (I-ME) Press Release
  
• Lawfare
  
• The Hill (Op-Ed Opposed)
  
• ACLU (Opposed)
  
• Electronic Frontier Foundation (Opposed)
  
• The Constitution Project (Opposed)