FISA Section 702 Renewal Reforms Did Not Go Far Enough

Today, the U.S. Senate formally passed the FISA Amendments Reauthorization Act of 2017 renewing Section 702 of the Foreign Intelligence Surveillance Act (Section 702), with several slight process reforms, by voting for cloture on replacing the text of the already-passed Rapid DNA Act, and following a similar action by the House of Representatives earlier in the month. Section 702 is the central legal basis for mass digital surveillance by U.S. intelligence agencies.

The i2Coalition has long advocated for a series of targeted reforms of Section 702, seeking both more transparency and oversight and an end to surveillance of American citizens without a warrant. Though some reforms were made in transparency and oversight, this renewal falls short of the goals we advocated for around actual surveillance practices. We are pleased that this bill spells out sharper requirements for annual court review and more diligent reporting to congressional oversight on how the data is used, of whom, and by whom.

However, this bill not only fails to disallow but codifies U.S. government agencies’ well-documented practices of warrantless surveillance of U.S. citizens, specifically through “backdoor searches.” Using these backdoor searches, data collected by the FBI can be used in unrelated cases. In addition, it allows the use of  “abouts” collection, which is communication merely mentioning a target. While neither practice had previously been expressly authorized in Section 702, both are authorized by this bill.

This is a blow to the Internet community, as it continues its fight to rebuild consumer confidence in the cloud.” said i2Coalition Executive Director Christian Dawson. “Some small concessions were made in this legislation, but it falls far short of what was needed to protect consumer privacy.”

Dawson continued, “i2Coalition fought against a permanent reauthorization of Section 702, and though we are pleased to have succeeded, the next renewal is a long time away. We now have six years before we can fight to close those additional loopholes.”