Congress Should Revert to Section 702 as Passed in 2008, If That’s What the Spooks Want!

Congress is passing a continuing resolution with an extension of Section 702 today, giving Congress one month to figure out how it will reauthorize the surveillance program.

But the Intelligence Community is making one more bid to talk Congress into passing some bill today. The same Intelligence Community that has opposed bills that offer even lip service reforms — most notably the House Judiciary Committee bill — insist that anything else than a new authorization will make the country less safe.

Reauthorizing Section 702 before it expires is vital to keeping the nation safe. Let us be clear: if Congress fails to act, vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure.

And (again, from an IC that has refused to engage with the HJC bill) the IC wants its reauthorization now, without the short term extension, because short term extension don’t provide certainty.

We also believe it is important that Congress reauthorize Section 702 before it expires on December 31, 2017.  Although the current Section 702 certifications do not expire until April 2018, the Intelligence Community would need to start winding down its Section 702 program well in advance of that date.  Winding down such a valuable program would force agencies to divert resources away from addressing foreign threats. Short-term extensions are not the long-term answer either, as they fail to provide certainty, and will create needless and wasteful operational complications. We urge Congress, therefore, to act quickly to reauthorize Section 702 in a manner that preserves the effectiveness of this critical national security law before it expires.

Where the release gets truly inexcusable, however, is how they flip their demand that this reauthorization codify certain dubious practices and not limit other ones. Congress is not required to make changes, the spooks say, without telling you that even the SSCI bill makes at least one reform, and most of the bills on the floor today make more serious ones. Those are the bills the IC prevented from passing.

To be clear – Congress is not required to make any changes to Section 702. The Intelligence Community conducts and uses 702 collection in a manner that protects the privacy and civil liberties of individuals.

The spooks pretend, as they have before, that the Ninth Circuit approved back door searches, which it didn’t.

Every single court that has reviewed Section 702 and queries of its data has found it to be constitutional.

They then take their emphasis on the word targeting a step further than normal to avoid telling you that their “targeted surveillance” of location-obscuring servers like Tor and VPNs actually collects on US persons, and the “oversight’ of that collection allows entirely domestic communications collected via such “targeted” collection to be used in criminal cases.

The Intelligence Community’s use of Section 702, which permits targeted surveillance only of foreign persons located outside the United States, is subject to extensive oversight and incorporates substantial protections to protect the privacy and civil liberties of individuals.

Here, the spooks don’t acknowledge how much has changed in between the various passage of these bills.

In short, we believe Congress got it right in 2008 when it passed Section 702 and in 2012 when Congress reauthorized it.

Consider: if the 702 on the table today were 702 as it existed in 2008, Congress would pass it gladly. That’s because no backdoor searches were permitted (though FBI was already doing them), to say nothing of the 2014 exception that permits the collection of US person location-obscured communications. And upstream “about” collection wasn’t affirmatively permitted either.

In other words, if Congress could have Section 702 as it passed in 2008, it’d be a vast improvement from a privacy perspective than the program as it exists right now (and also wouldn’t include a counterproliferation certificate or approval to target cybersecurity targets).

Note, too, the spooks don’t admit that most of Congress didn’t know about backdoor and other kinds of US person searches in 2012.

All that said, even after saying that Congress had it right in 2008, the spooks return to the coded demands that Congress not do a single thing to limit the spying on Americans that has gotten added to the program since 2008.

Nevertheless, the Intelligence Community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law, but we simply cannot support legislation that would impede the operational efficacy of this vital authority.

There were many “reasonable reforms to … further enhance the already-substantial privacy protections contained in the law.” Those were the bills the IC refused to let pass, which is why we’re here on one of the last legislative days of the year, punting this legislation for a month.

8 replies
  1. SpaceLifeForm says:

    Something funny going on. If the certs are good thru March 2018, why the panic?

    Maybe 702 does not provide total CYA for IC that long? Diff loophole?

    • orionATL says:

      plus, glenn simpson-fusion is, i think, involved with both prevezon and with the anti-magnitsky act “lobbying in the u. s. the doj was involved with prevezon until a sudden settlement from doj offer that took prevezon lawyers by surprise. further, some congressmen were involved with the american end of the anti-magnitsky effort as some trump campaign/whitehouse staff may have been.

  2. TomA says:

    The technology that enables mass surveillance is hardware, which is already in place and operating with very good efficacy and reliability. This will not change based upon any enactment of Congress. The sweep is virtually automatic. Only data inspection can be potentially constrained by legislation, but even that is a chimera. The purpose of these laws is to provide cover for those very few occasions when surveillance is exposed to external scrutiny. Hand-wringing over these legislative nuances will only perpetuate the mythology of privacy. This problem is already so insidious that even the program participants forget that they are caught up in the net also (hello Peter Strzok and Bruce Ohr!).

    • orionATL says:


      it looks like only storage and retention can be realistically addressed (e. g., beef hollow road, utah), but with nsa, cia, fbi, dea top officials routinely engaging in lawyerly lying in their public statements and congressional testimony, there really is no way any of us, us including willing congressional oversight types like ron wyden and their staff, keep u. s. governments’ spying on their citizens under control.

      even if there is broadscale congressional control, there still will be local and state police spying use stingers, license plate readers, drones, and airplane photo surveillance of actions and faces, all technical devices as tom says, together with “drug property seizure” searches.

  3. Rapier says:

    The thing that is slightly encouraging about all this maneuvering to make what they do and want to do legal is that they have to bother at all. Made necessary so that the evidence produced can be used in courts. We take it for granted that the US government will use courts when it takes action against perceived threats. But are those threats against the collective we, the people, or threats against those holding power? As time goes on inevitably it will be more the latter and from that one may assume the need for courts will decline, I say ominously.

    • orionATL says:

      yes. i neglected legal standards in my comment. establishing these are extremely important for any chance of fair/competent defense efforts against a powerful government whose prosecutors who habitually hide evidence.

      of great importance to interpretation of any rules is the political fact that the rightwing in power now, especially the grotesquely misnamed “federalist society” are busy packing the federal (and maybe state) appellate, specialty, and supreme courts with blatant republican partisans masquerading as balanced and fair judges, chosen for their youthful longevity using the model of the legally worthless justice clarence thomas.

      this latter matter virtually assures a legally repressive, authoritarian government focused on helping american super-rich corporations and super-rich individuals both hang on to their money and avoid government regulation.

      • orionATL says:

        (continuing from above)…

        while severely repressing dissent that challenges rich-man’s-rules

        and negating as unconstitutional inconvenient legislation passed by congress.

        we hsve a fully specified (fully understood in terms of its power and leverage points) political system that is in the final stages of being taken over taken over by our determined and focused superwealthy cellow citizens.

        never forget that partisan republican supreme court justices made supreme court decisions like citizens united (a rightwing astroturf group) which opened the door to this take over of our state and federal governments by hidden super-rich. the key to this partisan political victory was the complete reworking in internal discussions of the original case brought before the court.

        the vote in favor of letting hidden, unregulated money take over the american was the usual political system 5-4.

        in his dissent, justice john paul stevens laid out the obvious consequences that were immediately seized on and implemented by the rightwing super-rich and took but a few short years to take root by 2016.

        from miss wiki:

        “… A dissenting opinion by Justice Stevens[35] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens read part of his 90-page dissent from the bench.[36] Stevens concurred in the Court’s decision to sustain BCRA’s disclosure provisions but dissented from the principal holding of the Court. He argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He added: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”[37]

        Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional, and that the majority “changed the case to give themselves an opportunity to change the law”.[28] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203… “

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