House set to vote on surveillance restrictions

The House is set to vote on a measure that could substantially impact how the U.S. government can legally use and search the digital communications of U.S. persons obtained under the Foreign Intelligence Surveillance Act.

Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.) have co-sponsored an amendment to the combined "Minibus" appropriations bill working through Congress that would place tighter legal limits on surveillance authorities contained in Section 702 of the 2008 FISA Amendments Act.

The one-page amendment states that all certifications made under FISA Section 702 must specify that they do not authorize any acquisition that "intentionally targets a person reasonably believed to be located outside the United States if a significant purpose of such targeting is to acquire the communications of a particular, known person reasonably believed to be in the United States." It would also prohibit the government from acquiring any communications that are wholly domestic or where no participant is an authorized target.

Amash said he had been informed that a vote on the measure could come as early as Tuesday night.

"FISA 702 allows the government to warrantlessly collect a massive amount of data," said Amash on Twitter. "In doing so, it collects communications of Americans, which can be searched without a warrant and used in criminal prosecutions. This violates Americans' Fourth Amendment-secured rights."

The measure is designed to eliminate or curtail a number of ways whereby a law initially created to tap phone networks and undersea cables surveilling foreign terrorists and spies was also used to obtain and search the communications of thousands of U.S. persons.

It would formally outlaw "about collection," a process that sweeps up online communications between parties -- including U.S. persons -- where certain selectors (such as an email address or name of a foreign target) is mentioned or referenced. The National Security Agency has said it stopped about collection in 2017, but critics contend the decision to end the program was voluntary and worry it could be reversed in the future without statutory changes.

The amendment would also ban a practice known as "reverse targeting," using Section 702 authorities to intentionally obtain the communications of U.S. persons (citizens or residents) by targeting a foreigner abroad who communicates with them.

Forty-seven organizations have signed a letter urging Congress to adopt the amendment, saying it would "help ensure Section 702 is only used for the purposes Congress intended and would significantly advance the privacy rights of people within the United States."

The latest transparency report released in April 2019 from the Office of the Director of National Intelligence stated that intelligence agencies (excluding law enforcement agencies like the FBI) conducted 9,637 queries for search terms concerning a known U.S. person in 2018, more than double the number in 2015. Each query can return multiple results.

While civil libertarians and their allies in Congress sought to use the law's reauthorization in 2017 to further rein in its reach, an alliance of the White House, intelligence communities and Republican leaders in Congress were able to use the pending expiration to pass a six-year extension that privacy advocates argue allows even more permissive searches by agencies like the FBI.