Washington, DC (Oct. 5, 2017) -- Today Reps. Bob Goodlatte (R-Va.) and John Conyers (D-Mich.), the chair and ranking member of the U.S. House Judiciary Committee, and Jim Sensenbrenner (R-Wis.) and Sheila Jackson Lee (D-Tex.), the chair and ranking member of the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, presented a bipartisan discussion draft of the "USA Liberty Act" — a bill that would reauthorize and reform Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 allows the government to collect the content of communications of foreigners outside of the United States without a warrant, including their communications with US citizens. The language comes as Congress prepares to debate the future of these surveillance authorities which are scheduled to sunset at the end of this year. NACDL has long expressed concern about the way that the program has been implemented.
"The government has never answered questions about how much US citizens' information, collected without a warrant, is stored or searched by law enforcement," said NACDL president Rick Jones. "Notice in criminal cases using Section 702 information has been limited and infrequent. While we applaud this bipartisan effort to reform this expansive surveillance program, it does not go nearly far enough to cure the constitutional issues raised by its implementation. Without significant reform to bring the program in line with the Constitution, Congress should allow this authority to expire."
The draft legislation under consideration would reauthorize the law for six years. It would also codify the end of the practice referred to as "about" collection, whereby the government was collecting even purely domestic communications merely because they mention a target of Section 702 collection. In addition, the draft legislation would make a marginal fix to the backdoor search loophole that allows the government to search the information collected under Section 702 for domestic investigations.
However, the backdoor loophole "fix" includes such broad exceptions as to render the reform mostly meaningless. In addition, the bill does nothing to strengthen notice requirements to ensure that the accused in criminal cases knows the true source of the evidence being used against them. It would also increase the maximum sentence for knowingly removing classified documents from one year to five, and create a new crime of negligently removing classified documents.
NACDL's extensive comments concerning Section 702 submitted to the Privacy and Civil Liberties Oversight Board (PCLOB), dated April 11, 2014, are available here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.