Congress Tries to Breathe Life into FISA 702

Just as a reminder, FISA or the foreign intelligence surveillance act, is the law that allows mostly the NSA to collect surveillance on foreigners abroad – along with the Americans they might be talking to. Without a warrant and without being suspected of committing a crime. The NSA shares this data with the FBI, who, to be polite, doesn’t take their privacy responsibilities too seriously, according to both sides of the aisle.

When FISA was originally enacted and after 9-11, parts of FISA were set to automatically expire after a few years. Section 702, which allows for bulk data collection, expires in roughly 50 days. This is making the intelligence community very nervous since, it seems, they do treat their privacy responsibilities right and say that the data is very useful in catching terrorists, something we would like to do even more of.

A group of House and Senate lawmakers just introduced a bill to extend the life of 702 for four more years (instead of the usual five, to make sure that it comes up in a presidential election year next time), with some serious changes.

The bill, called the Government Surveillance Reform Act of 2023 (the name sort of captures what they want to do) would require the FBI to get a warrant each and every time they want to search the NSA’s data, which the FBI says would be terribly inconvenient for them. The executive branch doesn’t like that requirement, but the alternative could be no 702 data collection at all.

Kind of like the “it’s to protect the children” argument, the FBI says what if we are not able to thwart a terrorist attack because we are too bureaucratic to get a warrant in time…. Well, that is not exactly what they are saying but it is close. You get the idea.

There are some carveouts in the bill, so I think the executive branch’s whining is a bit overblown. Exceptions include national security (I would guess that the situation the FBI claimed was a problem above would be covered by that exception) and protecting individuals and US companies from digital attacks. The bill also has other restrictions in addition to the one above.

Also, while the White House is complaining about the bill, they say they have not read it yet. But, they don’t like it.

Since creating new laws is like making sausage (a very messy process), who knows how it will turn out. In addition, since the government is going to run out of money in two weeks, that could be a problem as well – one that those folks in DC need to worry about as well.

Stay tuned; this sausage is definitely not done. Credit: The Record