Elizabeth Goitein:
The House just voted against the rule that would have brought Section 702 legislation to the floor tomorrow. This puts Section 702 itself in jeopardy—something that could easily have been avoided if surveillance hawks were willing to entertain reasonable reforms.
The purpose of 702 is to collect intelligence on non-U.S. persons abroad; that is where its value overwhelmingly lies. But the gov’t uses it to spy on Americans through “backdoor searches,” a practice that undermines the 4th Amendment and has scant national security value.
Lawmakers on the right and left have proposed reasonable reforms to protect Americans’ privacy, including a warrant requirement for backdoor searches that includes multiple exceptions and wouldn’t apply to metadata queries.
Members have also proposed reforms to close the data broker loophole, through which the government is evading constitutional and statutory privacy protections by purchasing Americans’ sensitive information from data brokers.
After all, it makes little sense to require a warrant for backdoor searches if the government can simply turn to data brokers to acquire similar information without a warrant. It would be like closing off one out of two breaches in a dam.
Lawmakers had several other reforms in mind as well. Most of these were included in a sweeping reform bill, the Government Surveillance Reform Act, that was introduced with strong bipartisan support in both houses of Congress.
The intelligence community, backed by surveillance hawks in the intelligence committees, dug in its heels. So reformers compromised and introduced the Protect Liberty Act. It still closed the backdoor search and data brokers loopholes but omitted several other major reforms.
The IC and intel committees still wouldn’t play ball. So reformers came up with yet a further compromise: the SAFE Act, which modified the warrant and data broker provisions to respond to the IC’s stated concerns.
Either the Protect Liberty Act or SAFE Act could likely have passed the House, and they certainly would have passed if IC/intel committees were willing to concede that Section 702 should not be used as a means of warrantlessly accessing Americans’ communications.
But rather than bring one of these compromise bills to the floor, Speaker Johnson chose to go with RISAA, a bill favored by the IC that masquerades as reform but is carefully designed to preserve the status quo when it comes to backdoor searches.
Reformers STILL agreed to go along with this, as long as they could offer amendments to close the backdoor search and data broker loopholes. But that was a little too much democracy for intelligence committee members, and they threatened to block the vote.
So this time, Speaker Johnson edited RISAA to ensure that the data broker amendment would be ruled “not germane,” killing one of the reformers’ two key amendments while allowing intel committee members to offer three amendments to dramatically expand surveillance.
That was the last straw. Even though the majority party traditionally votes in favor of the rule, nearly 20 Republicans crossed the aisle to vote against it, dooming tomorrow’s RISAA vote.
Many reporters are suggesting that these members voted “no” because Trump told them to in a social media post this morning. That take ignores these members’ strong and consistent support for reform over the past year.
To those who have been following Section 702, today’s vote was no surprise. It was a predictable response, not to Trump, but to Speaker Johnson’s decision to roll the committee of jurisdiction (Judiciary) and block reforms demanded by members and by the American people.
The message is clear. If the IC/intel committees want the government to continue collecting and reviewing foreigners’ communications under Section 702, they must end their insistence on allowing the government to conduct warrantless searches for Americans’ communications.
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Tom |
