House bill needs stronger reforms to ensure transparency and accountability for government surveillance programs

Updated: October 13, 2017 – Today, OpenTheGovernment joined a coalition of government accountability, privacy, civil rights and civil liberties organizations, calling on Congress to strengthen the surveillance reform bill introduced by the House Judiciary Committee last week. The letter urges members of the committee to address concerns with the “backdoor search loophole,” which allows the government to access Americans’ communication without a probable cause warrant or any evidence of criminal activity. The current reform bill requires stronger measures to prevent the FBI and domestic law enforcement agencies from engaging in unlawful surveillance of U.S. persons, as well as stronger transparency and oversight provisions to enable Congress and the public to better understand the scope of surveillance conducted under Section 702 authority.

Read the full letter here

October 6, 2017 – The House Judiciary Committee introduced legislation to reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) — the warrantless surveillance law that allows for sweeping government collection of internet and telephone communications of people within and outside the U.S. The USA Liberty Act is an important bipartisan measure introduced by Representatives Goodlatte, Conyers, Sensenbrenner, and Jackson Lee, but falls short of reforms necessary to protect individuals from warrantless government surveillance, and to ensure transparency and oversight for the massive spy programs conducted under Section 702 authority.

The Section 702 FISA database is built on surveillance authorized for broadly defined “foreign intelligence purposes.” Yet, it is used for domestic law enforcement completely unrelated to national security. OpenTheGovernment has joined privacy, civil liberties, civil rights, and government accountability groups in calling for reforms to the law that would prevent the FBI and domestic law enforcement agencies from engaging in unlawful surveillance of U.S. persons, and for stronger transparency and oversight measures to enable Congress and the public to evaluate the effectiveness of Section 702 programs. While Congress has forced the intelligence community to make important information disclosures related to the surveillance law, much about the scope and interpretation of Section 702 remains shrouded in secrecy. Despite repeated calls from open government groups, privacy advocates and members of Congress, for example, the intelligence community still refuses to provide an estimate of how many communications involving U.S. residents are swept up under Section 702 programs.

In order to address the constitutional and secrecy issues raised by its implementation, any extension of Section 702 should include, at a minimum, the following reform measures and transparency requirements:

  • Require the Justice Department’s Office of Legal Counsel (OLC)  to submit all final legal opinions that interpret Section 702 to Congress and declassify and make public the opinions to ensure that the program is not guided by secret law;
  • Require the Office of the Director of National Intelligence to conduct and make publicly available an estimate of the number of Americans’ communications that have been “incidentally” collected under Section 702;
  • Limit the use of Section 702 data to ensure that information collected for national security purposes cannot be used in investigations and prosecutions that are wholly unrelated to national security;
  • Require notice for defendants in every instance where Section 702 data is used as part of an investigation that leads to a prosecution, in order to uphold the constitutional rights of defendants in a court of law.

“We applaud the bipartisan efforts to address the serious constitutional concerns surrounding one of the government’s most expansive spying legal authorities,according to Lisa Rosenberg, Executive Director of OpenTheGovernment. “Now, it is critically important for Congress to build on this legislation, and include reforms that mandate greater transparency and oversight to protect the public from pervasive and potentially dangerous government surveillance.”