Someone Else Has A Go At Reforming US Section 702 Spying Powers – And Nope, No Warrant Requirement

Some US lawmakers have tabled alternative legislation to reauthorize the Feds' favorite snooping tool, Section 702 of the Foreign Intelligence Surveillance Act, before it expires at the end of the year.

But unlike a rival surveillance reform proposal unveiled earlier this month, the legislation introduced on Tuesday by US Senator Mark Warner (D-VA) and friends doesn't require US law enforcement agencies to obtain a warrant before scouring US folks’ electronic communications.

Section 702 is supposed to primarily allow American intelligence agencies to pore over emails, phone calls, and texts involving foreigners who are outside the USA. However, if those foreigners contact American citizens or permanent residents, Section 702 allows the Feds to assess material shared with or created by those US persons if it’s thought to relate to matters of national security or very serious crimes.

In effect, S.702 can be used by Uncle Sam to go through the private communications of US citizens and green-card holders, without a warrant, in certain circumstances.

The justification for Section 702 is that it has helped the US government prevent ransomware attacks and disrupt Iran's weapons program, plus other national-security wins.

But the section has also been abused countless times by the FBI to surveil political protesters, campaign donors and even elected officials.

The FISA Reform and Reauthorization Act of 2023 [PDF], introduced earlier today by a bipartisan group of US senators including Warner, Marco Rubio (R-FL), and Lindsey Graham (R-SC), does add some safeguards to the US person queries allowed under Section 702.

It prohibits the FBI, CIA, and NSA from conducting queries "that are solely designed to find and extract evidence of criminal activity" — with an exception for searches that may surface data that could eliminate a threat to life or serious bodily harm.

If that seems odd, remember that Section 702 is supposed to be an espionage tool for gathering intelligence on foreign targets – not for snaring domestic crooks.

The bill also mandates that FBI personnel complete training before scouring the trove of captured electronic communications available under Section 702, and to obtain approval from an FBI attorney before running a "batch job" query that uses multiple search terms.

Additionally, the bill requires FBI agents to secure approval from their superiors for any query term that could be "reasonably believed" to identify a US elected official, political candidate, or appointee, US journalists, or religious leaders.

The proposal also adds several reporting requirements to give lawmakers more clarity on the number and scope of US persons queries conducted by the FBI. However, it stops short of requiring a warrant or court order for US persons searches, which privacy advocates and some lawmakers from both sides of aisle consider an essential Section 702 reform.

"Its sponsors may try to frame the bill as containing a partial warrant rule, but its application would be so narrow — applying less to than one hundredth of one percent of FBI queries and none of the NSA's or CIA's queries, and to none of the many scenarios where abuse has occurred — that I think describing it as containing virtually no warrant requirement is more accurate," Jake Laperruque, deputy director of the Center for Democracy and Technology's (CDT) Security and Surveillance Project, told The Register.

Meanwhile, the White House and the FBI have called a warrant requirement a "red line" and a de-facto ban on Section 702.

• FBI Director: FISA Section 702 warrant requirement a 'de facto ban'
• Uncle Sam snooping on US folks? Not without a warrant, lawmakers agree
• Feds' privacy panel backs renewing Feds' S. 702 spying powers — but with limits
• Proposed ban on data brokers selling warrantless personal info to Feds revived

When asked why Senator Warner's proposal doesn't require a warrant for queries of US persons, the senator's communications director, Rachel Cohen, echoed the Biden administration's concerns.

"Section 702 queries are important to national security and are often used to protect the US person who is the subject of the query from hostile foreign threats, such as cyber-attacks and assassination plots," Cohen told The Register.

"To establish probable cause to obtain a warrant, the government would have to show that the subject of the query is 'an agent of a foreign power,' which is not possible where that person is a victim or someone the government is trying to protect."

"A requirement to establish probable cause and obtain a warrant or court order before conducting a US person query of Section 702 data would effectively prevent the government from protecting the American people," she added.

When asked the same question, Senator Rubio's team emailed The Register this canned answer:

"There is broad, bipartisan and bicameral support to make real reforms to the 702 program.

"This bipartisan proposal would create new guardrails, prohibit certain practices, increase transparency, and ensure accountability for those that violate the law. 702 is an indispensable national security program that needs to be reauthorized, but that won't happen without meaningful reforms." ®