Lawmakers Reveal Surveillance Reforms amid Trump-Russia Fallout, Imminent Expiration of N.S.A. Powers


Members of the House Judiciary Committee from both the majority and minority unveiled legislation on Thursday that would rein in federal internet surveillance powers.

Republicans and Democrats joined forces to propose new constraints to Section 702 of the FISA Amendments Act, in the wake of public disclosures about the ongoing investigation of high profile Trump campaign officials.

Newspaper reports earlier this year detailing the operatives’ encounters with politically-connected Russian nationals roiled many conservatives, fueling suspicion that Congress would let Section 702 expire, when it sunsets in December.

Stories about the Russians’ interactions with Attorney General Jeff Sessions, former National Security Adviser Michael Flynn, campaign manager Paul Manafort, White House adviser Jared Kushner and Donald Trump Jr. have rocked the administration in its first year in office.

An investigation into possible collusion between Moscow and the Trump campaign is being conducted by special prosecutor Robert Mueller, who was appointed in the wake of Trump’s firing of ex-FBI Director James Comey.

If it passes, the bill would be the second successful surveillance reform effort in recent years, after unauthorized public disclosures were made in 2013 by former National Security Agency contractor Edward Snowden. The revelations included details about powerful internet surveillance tools authorized by Section 702.

In 2015, President Obama signed into law the USA Freedom Act, legislation that narrowed the government’s powers to collect phone records en masse—a surveillance program also detailed by Snowden’s whistleblowing.

“I believe that we must make these reforms if we are to convince a critical mass of our colleagues that Section 702 should reauthorized at all,” Rep. John Conyers (D-Mich.) said on Thursday.

Conyers made the statement at a press conference on Capitol Hill alongside Bob Goodlatte (R-Va.), the chair of the committee, and Reps. Sheila Jackson Lee (D-Texas) and Jerrold Nadler (D-N.Y.).

Though the NSA focuses on foreign nationals outside of the United States, American citizens and residents are caught up in its dragnet.

How many Americans’ privacy is “incidentally” violated by Section 702 isn’t clear. Repeated congressional inquiries on the matter have gone unanswered by NSA officials.

“It is clear that the Section 702 surveillance program can and does incidentally collect information about US persons when they communicate with foreign targets,” Goodlatte said.

He also noted that Section 702 has been used for one-quarter of all NSA data collection, and deemed the law useful and praiseworthy.

The legislation unveiled by the lawmakers, set to be introduced on Friday, would prohibit parallel construction–when law enforcement agencies use NSA espionage to advance criminal and civil cases without a warrant.

It would also force the agency to document and disclose “unmasking requests and approvals”–when the identity of US persons is unencrypted after incidental collection during foreign surveillance operations.

The so-called USA Liberty Act would also increase penalties on agents who mishandle classified information. The legislation would additionally narrow what qualifies as pertinent information that can be stored by the NSA, while imposing new data purging requirements.

Goodlatte also noted that an upcoming Supreme Court decision will impact how reformers proceed.

Justices are currently weighing whether to hear a lawsuit involving Section 702 and the 2010 Oregon Christmas Tree bomber.

At the time of his failed plot and arrest, Mohamed Osman Mohamud was a 19-year-old troubled college dropout who had been the target of an intense FBI sting for months. His co-conspirators were undercover federal operatives who oversaw the failed attack and Mohamud’s subsequent arrest, raising questions of entrapment.

An appellate court in the Ninth Circuit ruled in December that Mohamud’s surveillance was Constitutional. Judges said the FBI didn’t need a warrant to obtain information gleaned under Section 702 because Mohamud was not the target of espionage and his “email communications were incidentally collected.”

In April, amid rancor over Section 702 and the Trump-Russia inquiry, the NSA said that it would halt a type of collection it had allowed under a prior agency interpretation of the statute—so-called “about” collection.

“An example of an ‘about’ email communication is one that includes the targeted email address in the text or body of the email, even though the email is between two persons who are not themselves targets,” the NSA explained when announcing the change. The USA Liberty Act would codify this change into law.

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Since 2010, Sam Knight's work has appeared in Truthout, Washington Monthly, Salon, Mondoweiss, Alternet, In These Times, The Reykjavik Grapevine and The Nation. In 2012, he worked as a producer for The Alyona Show on RT. He has written extensively about political movements that emerged in Iceland after the 2008 financial collapse, and is currently working on a book about the subject.