Congress Has a Critical Opportunity to Protect Americans by Passing the Government Surveillance Reform Act

November 7, 2023 | Chris Baumohl, EPIC Law Fellow

For more information, see EPIC’s blog series on Section 702 ahead of its reauthorization deadline in December 2023, where we dive deeper into the authority and the need for significant reform.

Today, Senators Ron Wyden (D-OR) and Mike Lee (R-UT), as well as Representatives Warren Davidson (R-OH) and Zoe Lofgren (D-CA), introduced the Government Surveillance Reform Act (GSRA), a sweeping bipartisan, bicameral bill that would rein in the growing ecosystem of warrantless government surveillance authorities as part of reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is due to expire on December 31. Senators Wyden and Lee are joined by Senators Hirono (D-HI), Daines (R-MT), Tester (D-MT), Lummis (R-WY), Warren (D-MA), Markey (D-MA) and Baldwin (D-WI). And Representatives Davidson and Lofgren are joined by Reps. Biggs (R-AZ), Jacobs (D-CA), Massie (R-KY), Jayapal (D-WA), Chu (D-CA), Mace (R-SC), Correa (D-TX), Doggett (D-TX), Lee (D-CA), and Lieu (D-CA).

Section 702 and the Need for Significant Reform

Section 702 authorizes surveillance targeting non-U.S. persons reasonably believed to be outside the United States to acquire “foreign intelligence information” with compelled cooperation of U.S. service providers—and without any individualized court approval. Since its inception in 2008, the government’s use of Section 702 has grown, with now nearly a quarter of a million targets and hundreds of millions of communications collected each year—an unknown but likely significant amount of which are either to or from Americans. Over the same time, Section 702—which was initially passed as an important, but temporary, counterterrorism authority—has increasingly been used as a tool for domestic surveillance.

However, while Section 702 is up for reauthorization, it is not the only part of the warrantless government surveillance ecosystem in dire need of significant reform. Agencies also conduct significant surveillance under Executive Order 12333 (EO 12333), including surveillance affecting Americans, and without even the minimal statutory safeguards and judicial review that are present in the FISA context. Intelligence and law enforcement agencies have also exploited the data broker loophole by warrantlessly purchasing Americans’ sensitive information—including location information—from data brokers, circumventing statutory and constitutional protections.

Across the board, intelligence and law enforcement agencies’ means of collecting, searching, and otherwise using Americans’ sensitive information have outpaced traditional protections. And across the board, time after time, reports show agencies either operating in statutory gaps—subject to no real oversight or accountability—or playing fast and loose with whatever agency rules are in place.

Given this reality, EPIC and other privacy and civil liberties groups have consistently emphasized that Section 702 should not be reauthorized absent significant reform. In March, EPIC released its major priorities for surveillance reform as part of any reauthorization of Section 702. And then in June, consistent with these major priorities, EPIC joined a bipartisan coalition of over thirty privacy, civil liberties, and civil rights groups in endorsing a longer list of key reform priorities.

The GSRA embraces many of these key reforms, including addressing warrantless “backdoor searches” of Americans’ communications and closing the data broker loophole. While the GSRA does not address every one of our coalition’s priorities, it includes other important provisions. In total, the GSRA is a vital piece of legislation that seizes upon a critical opportunity for government surveillance reform.

A Strong Fix to the Backdoor Search Loophole

The GSRA prohibits warrantless “backdoor searches”—searches for Americans’ communications and other protected information within databases amassed without a warrant—in all but narrow circumstances, such as where the search takes place with the Americans’ consent or under certain emergency situations involving an imminent threat of death or serious bodily harm.

As EPIC has explained previously, warrantless “backdoor searches” are one of the most controversial aspects of Section 702. And since the last reauthorization of Section 702 in 2018, government audits and FISC opinions have revealed staggering abuses of “backdoor searches,” including tens of thousands of improper searches relating to civil unrest, searches for love interests, and myriad civil rights abuses.

EPIC and its coalition allies—as well as members of Congress and oversight bodies—have called for a warrant requirement precisely because of this well-documented and persistent history of abuse and these agencies’ continued failure to adequately police themselves. The government, however, has continued to stonewall reforms by relying on tweaks to agency procedures. It continues to do so despite a growing chorus of voices endorsing significant reform.

The government’s public arguments against a warrant requirement “ring hollow” and are further undermined by the GSRA’s inclusion of emergency and other exceptions. These exceptions ensure that the GSRA’s warrant requirement is appropriately calibrated to adequately protect Americans from further abuse of these “backdoor searches” while remaining responsive to limited circumstances under which agencies must act in a true emergency.

Strengthening the FISA Court Process and Ensuring Judicial Redress

Building on the Lee-Leahy amendment, the GSRA includes provisions to strengthen the FISA Court process, including expanding the role of amici by increasing their involvement in the FISA Court process, enabling them to appeal FISA Court decisions, and providing them full access to relevant information. The GSRA also bolsters accountability and transparency by requiring that the government certify the accuracy of its applications, maintain a written record of communications with the FISA Court, and declassify significant decisions, orders, and opinions in a timelier fashion.

In addition to strengthening the FISA Court process, the GSRA also promotes judicial review in traditional courts. First, it clarifies the circumstances in which the government must give notice of surveillance to criminal defendants, something the government has consistently failed to do. Second, the GSRA seeks to ensure that the government cannot evade judicial review by pushing to dismiss cases based on standing or the state secrets privilege, which have long stymied efforts to challenge surveillance under Section 702.

Together, these provisions—which span ex ante FISA Court approval to post hoc judicial review—work to rebalance the FISA Court process in favor of greater privacy and civil liberties, while ensuring that criminal defendants and other targets of government surveillance can meaningfully assert their rights in court.

Addressing the Broader Ecosystem of Warrantless Surveillance Authorities

In addition to reforming Section 702 and other parts of FISA, the GSRA addresses the broader ecosystem of warrantless surveillance authorities head on. Intelligence agencies rely on claimed executive authority—such as EO 12333—to carry out foreign intelligence and counterintelligence operations. By operating under EO 12333, these agencies operate outside statutory frameworks that provide oversight and judicial review, instead relying only on self-policing through procedural safeguards and oversight to protect Americans’ rights.

The GSRA codifies key safeguards for surveillance conducted pursuant to EO 12333, many of which run parallel to reforms to Section 702. Importantly, the GSRA prohibits warrantless backdoor searches of information about Americans collected under both Section 702 and Executive Order 12333. This is consistent with what EPIC and other groups have called for, as well as prior recommendations by the President’s Review Group on Intelligence and Communications Technologies. In doing so, the GSRA establishes more consistent and enforceable rules for EO 12333 surveillance affecting Americans.

Along with these safeguards, the GSRA closes the data broker loophole for intelligence agencies, as well as federal, state, and local law enforcement agencies. In short, the GSRA prohibits these agencies from purchasing Americans’ data from data brokers under circumstances where they would need some form of a court order to compel that information directly. In combination with other provisions, the GSRA would require a warrant to collect particularly sensitive types of information, such as location data, web browsing records, and search history records. The GSRA would also prohibit agencies from purchasing personal data not obtained in compliance with, among other things, privacy policies and terms of service.

These provisions would in effect severely curtail—if not outright prohibit—many of the most harmful government data purchases, such as the widespread purchase of location data, the purchase of non-public personal data from large brokers LexisNexis and Thomson Reuters, and the use of tools like Clearview AI, which scrape social media profiles in violation of sites’ terms of service.

Critically, the GSRA also includes other vital reforms of intelligence and law enforcement surveillance, including ending a grandfather clause permitting continued surveillance conducted under Section 215 of the PATRIOT ACT (which expired in 2020)and by enacting safeguards around the use of cell-site simulators (also known as stingrays) and other forms of warrantless surveillance. The GSRA is the only bill that comprehensively and holistically addresses these threats to Americans’ privacy and civil liberties as part of a package reauthorizing Section 702.

To be clear, EPIC and our coalition allies have called for other reforms, such as codifying stronger protections for non-U.S. persons through limiting the scope of surveillance under Section 702 and EO 12333. We continue to believe that codifying these protections is vitally important and would prefer that Congress include such provisions in the GSRA or any other bill reauthorizing Section 702. Nonetheless, we believe that the bipartisan GSRA represents a critical opportunity to protect Americans against warrantless government surveillance and further government abuse of surveillance authorities. Congress should not reauthorize Section 702 absent these vital protections.

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