Nation’s Criminal Defense Bar Endorses Bipartisan Surveillance Legislation Introduced in the Senate and the House
Press Release
National Association of Criminal Defense Lawyers
October 24, 2017

Washington, DC (Oct. 24, 2017) – Today, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.), together with nine additional co-sponsors, introduced the bipartisan USA RIGHTS Act, a bill that significantly reforms warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 surveillance is supposed to target the communications of non-U.S. persons overseas, but often captures purely domestic communications. Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Tex.), and Beto O’Rourke (D-Tex.) introduced a companion bill in the House of Representatives.

This legislation goes a long way to bring Section 702 surveillance in line with constitutional protections. The bill would address critical failings in the way the program is currently implemented including ending “about” collection, in which the government was collecting not only the communications of the targets themselves, but also any communications that mentioned the targets. It would also largely close the “back door search” loophole that the government is using to search information collected without a warrant for subsequent use in domestic criminal cases. To address the practice of “reverse targeting,” the bill would require the government to get a warrant anytime a significant purpose of targeting a foreign person is to collect the communications of a U.S. person. Finally, it addresses the critical issue of notice for the accused in criminal cases by defining “derived from” 702 surveillance as information that would have developed but for FISA evidence. The legislation would sunset in 4 years.

“The government should not be in the business of collecting and storing massive amounts of electronic communications. The government has shown repeatedly that it cannot be trusted to access that data with restraint and in accordance with fundamental constitutional protections. Clear restrictions must be legislated by Congress, or this program should be allowed to expire,” said National Association of Criminal Defense Lawyers (NACDL) President Rick Jones. “The USA RIGHTS Act effectively addresses many of the ways in which the government was using Section 702 surveillance to skirt Fourth Amendment protections.”

With additional reforms to the Privacy and Civil Liberties Oversight Board, more restrictions on the use of information collected on U.S. citizens or people present in the United States, and additional transparency measures, the USA RIGHTS Act addresses many of the concerns that NACDL has with the way in which Section 702 has been operating. It stands in stark contrast to Senator Burr’s proposed legislation, the FISA Amendments Reauthorization Act of 2017, which not only does not significantly reform the program, but may be interpreted as an expansion of the ability to use Section 702 intelligence in domestic criminal cases. Short of the significant reforms enumerated in the USA RIGHTS Act, Congress should allow the authority to sunset at the end of this year.

The full text of the Senate bill is available here. One-page and full summaries are available here and here, respectively.

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