Members of the US House of Representatives Judiciary Committee have this week launched a new piece of legislation which is intended to completely overhaul the National Security Agency’s (NSA) ability to undertake warrantless online surveillance.
The power of Section 702
The move from the bipartisan Committee of Senators is being viewed by many campaign groups as the best chance they have of reforming Section 702 of the Foreign Intelligence Surveillance Act (FISA). FISA has to be renewed before the end of the year and, as we reported earlier this year, many expected President Donald Trump to renew without any changes.
Section 702 of FISA allows US intelligence officers to listen in and collect online communications data from any foreign suspect located outside the USA. The programme also collects some data on US citizens too and this data can then also be accessed by the FBI. In both cases, no judicial warrant is required. As it stands, this law potentially compromises the online privacy of every single person in the world.
However, since the power was revealed by Edward Snowden back in 2013, the NSA has consistently argued that it is a vital tool which enables them to keep the USA and its allies safe. They have therefore strongly resisted any attempts to water it down.
But this new legislation is attempting to introduce some sensible safeguards. The draft bill, which has been seen by the Reuters news agency, includes a requirement for the FBI to secure a warrant before accessing any data collected under Section 702. However, this requirement is not in place if the matter in question is one of counterterrorism or counter-espionage.
This limitation has disappointed a number of campaign groups who were hoping for the bill to make a warrant necessary regardless of the type of case involved.
Earlier this year, the NSA also voluntarily stopped collecting communications data which merely included the mention of an overseas suspect. This new bill would make that voluntary act a legal requirement. It would, however, renew the Bill for a period of six years, which means at the end of that time period, this could be rolled back.
Whilst this Bill appears to be a step in the right direction, it does nothing to stop US Intelligence agencies from routinely collecting the online communications data of anyone based overseas on the flimsiest of pretexts. It builds in a handful of additional safeguards but does nothing to get to the core issue of NSA bulk surveillance and data retention.
A long legislative road ahead
Even so, it faces a rough ride through the US legislative system. A number of Republican Representatives have already tabled a separate bill which would not only renew FISA as it is, including Section 702, but also make it permanent. This would remove the need for legislators to review it periodically in the future.
This Bill is predictably supported by Intelligence Agencies and it is also thought to have the backing of the Trump Administration in the White House. However, it does not have the support of the whole Republican Party which will make it hard to pass.
Equally, Democratic Senator Ron Wyden and Republican Senator Rand Paul are believed to be working on a bill which would require a warrant for any Section 702 query that involved an American citizen, while Republican Senator John Cornyn and Democratic Senator Dianne Feinstein are also putting together a Bill believed to sit somewhere between the two.
The renewal of FISA is going to lead to some heated debates, not only between the two political parties but within them too. Finding a way forward will be difficult, but it has to be hoped that a compromise can be reached which does introduce some extra protections.
But even if that is the case, FISA will still allow the US Intelligence Agencies to hoover up vast quantities of online communications data from users all over the world. As was clear in the global response to the Edward Snowden revelations, this is a chilling prospect for many people.
But it has been happening for years and is going to continue, so the best way to deal with it is to take steps to protect yourself online. Using a reliable VPN like IPVanish or ExpressVPN enable individuals to encrypt all of their online data making it much harder for prying eyes, both at home and from overseas, to see what you are up to online.