Senate Could Make It Easy for FBI to Spy on Teen Sexters, Black Lives Matter, and Other U.S. ‘Criminals’

A bill under consideration in the Senate could drastically expand the National Security Agency's power to conduct warrantless digital surveillance and U.S. law-enforcement's ability to use the collected data against Americans.

The Senate Select Committee on Intelligence today will privately consider reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless snooping on foreigners outside the U.S. and anyone using Tor (something more than 400,000 Americans use daily) or VPN networks if their communications are deemed matters of national security. Section 702 has long been criticized for scooping up American communications in the dragnet, which can then be used by the FBI and local law-enforcement partners in domestic criminal proceedings.

Section 702 is set to expire on December 31. The draft reauthorization, sponsored by Senate Intelligence Committee Chairman Richard Burr (R-North Carolina), would extend it through 2025.

But like so many federal "reauthorizations," Burr's bill is actually a significant expansion of previously granted powers. The civil-liberties blog emptywheel called it a "domestic spying program."

Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, said Burr's bill would "allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge."

As written, law-enforcement agencies like the FBI can only use 702-collected information in domestic criminal-cases related to terrorism, espionage, or other national security matters. Burr's bill would approve sharing 702 data in eight other domestic offense categories, including "human trafficking"—a crime U.S. law-enforcement has broadened to include sexual exchange between consenting adults and any aid to undocumented immigrants—and sexting between teens.

Section 5 of the draft bill purports to restrict domestic law-enforcement use of 702 data. But it "is in reality a vast expansion of the uses to which Section 702 data" may be applied," emptywheel notes.

Law enforcement is barred from using any 702-collected communication "to, from, or which contains a reference to a United States person" in a domestic criminal proceeding against that person—unless the Attorney General determines that it "affects, involves, or is related to the national security of the United States" or any investigation involving death, kidnapping, serious bodily injury, destruction of critical infrastructure, "cybersecurity," transnational crime of any sort (with special emphasis on narcotics trafficking), human trafficking, and a wide array of offenses against minors (including solicitation for sex, solicitation for prostitution, production or possession of child pornography, and distribution of sexually explicit material containing a minor, the federal offense used to go after teen sexters).

Any such determination made by the Attorney General would not be subject to judicial review.

This means "Jeff Sessions could decide tomorrow that [the DOJ] can collect the Tor traffic of [Black Lives Matter] or [pro-Palestine] activists, and no judge can rule that's an inappropriate use of a foreign intelligence program," writes emptywheel.

Some U.S. lawmakers are proposing Section 702 reforms designed to safeguard American communications from these digital dragnets. In the House, there's the USA Liberty Act of 2017, which "would require a court order to get access to [American] communications, unless the requests for access involve investigating terrorism or espionage," as Reason's Scott Shackford explained earlier this month. It would "narrow the 'backdoor' the government has used to snoop on Americans without warrants, but it doesn't close really close it."

In the Senate, a bipartisan crew led by Sens. Rand Paul (R-Kentucky) and Ron Wyden (D-Oregon) just announced a bill to require a warrant for data on Americans surveilled under the program; the text of that legislation has not yet been released, but a summary is available on Wyden's website.