Bills
| 3.23.22

USA Liberty Act: Reforming & Reauthorizing the NSA’s Collection of Communications Under Section 702 (H.R. 3989)

Do you support or oppose this bill?

What is H.R. 3989?

(Updated August 10, 2021)

This bill — known as the USA Liberty Act — would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits intelligence agencies’ collection of electronic communications by non-U.S. persons outside of the U.S. for national security purposes, for six years through fiscal year 2023. The current authorization expires at the end of the year. The bill would look to reform the process by which metadata collected under Section 702 can be accessed, strengthen civil liberties protections for Americans whose communications are incidentally collected, prevent government abuse of the unmasking process, improve oversight, and protect national security. Details on those provisions of the bill can be found below.

The process for accessing results from Section 702 queries would be reformed and only permitted for national security or criminal investigations:

  • For criminal investigations, the government must obtain a court order based on probable cause to look at the content of communications unless lives or safety are threatened or a previous probable cause-based court order or warrant had previously been issued. As long as it’s relevant to an authorized investigation, the the database could be queried and an agent can immediately access metadata like phone numbers and time stamp information with supervisory approval.

  • For national security investigations the the government must have a legitimate national security purpose to query the 702 database for a U.S. person’s email or phone number.

When an American citizen’s information is collected by the National Security Agency as part of the Section 702 database, their personal information is supposed “masked” through minimization standards. Certain government officials have the power to unmask that information, and to prevent abuse all such requests but be logged to allow for congressional oversight.

Congress would get a report twice per year with the number of U.S. citizens whose communications are incidentally collected; the number of unmasking requests that involve U.S. persons; and the number of requests by the intelligence community that resulted in the dissemination of unmasked identities. A report would also be required for the number of Dept. of Justice (DOJ) queries that resulted in a “hit” in the 702 database.

The NSA’s internal prohibition on the collection of so-called “about” communications — meaning a foreign target of surveillance is referenced in a communication — would be codified into law for six years so Congress can revisit the issue. (NSA ended this because it couldn’t prevent Americans’ communications from being swept up in “about” communications.)

The Director of the National Security Agency and Attorney General would be required to jointly sign an affidavit certifying that communications collected under 702 that are determined not to contain foreign intelligence information would be purged.

The bill would also codify the current practice of allowing the Foreign Intelligence Surveillance Court (FISC) to designate an amicus curiae to represent civil liberties concerns regarding the government’s annual 702 certification. If the FISC doesn’t designate an amicus curiae, it would have to document the reasons for its decision.

The Privacy and Civil Liberties Oversight Board (PCLOB) would be allowed to hire staff and work even in instances when not all five members of the board have been nominated and confirmed. The PCLOB serves as a watchdog over the federal government’s national security tools as they relate to Americans’ civil liberties. 

Whistleblower protections afforded to government employees would be extended to private contractors hired by the intelligence community.

The penalty for the unauthorized removal and retention of classified information would be increased from up to one year to up to five years imprisonment.

Federal agencies would be directed to share national security and foreign intelligence information among the intelligence community in order to thwart terror plots.

The U.S. would be allowed to share information collected under section 702 with allies to combat terrorism.

The bill’s full title is the Uniting and Strengthening American Liberty Act of 2017.

Argument in favor

This bipartisan bill to reauthorize and reform the NSA’s collection of communications by non-U.S. persons outside the country for national security purposes while reforming the process to better protect Americans’ civil liberties.

Argument opposed

While it may have bipartisan support, this bill ultimately doesn’t do enough to protect Americans’ privacy through “incidental collection” or prevent their identity from being improperly unmasked by government officials.

Impact

American citizens whose communications are incidentally collected under section 702; non-U.S. persons whose communications are collected; intelligence agencies; and Congress.

Cost of H.R. 3989

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Bob Goodlatte (R-VA) introduced this bill to reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) which is set to expire at the end of the year:

“The USA Liberty Act protects Americans’ lives and their civil liberties. This bipartisan bill reauthorizes a critical national security tool that keeps Americans safe but also reforms it to protect Americans’ constitutional rights. It contains more accountability, transparency, and oversight so that the American people have confidence that our cherished liberties continue to be protected as the intelligence community keeps us safe from foreign enemies wishing to harm our nation and citizens. The bill also contains a number of measures to further enhance national security so that our country remains free and safe. I thank the many members who have worked on this bill for months and look forward to bringing it up in the House Judiciary Committee soon.”

Lead cosponsor Rep. John Conyers (D-MI) added:

“Section 702 of the Foreign Intelligence Surveillance Act is essential to the intelligence community’s gathering of foreign intelligence and detecting threats to the homeland.  Its reauthorization should include reforms that bring this authority better in line with our sense of privacy and due process.  Indeed, we believe that it will only be possible to reauthorize Section 702 with such reforms in place. The bipartisan USA Liberty Act is designed to accomplish this goal.”

This legislation has the support of 12 bipartisan cosponsors in the House, evenly divided between Republicans and Democrats.

The Electronic Frontier Foundation gave the USA Liberty Act a mixed review, saying that it “won’t curtail the NSA’s practices of collecting data on innocent people” but “does make significant changes to how and when agents can search through data collected under 702.”


Media:

Summary by Eric Revell

(Photo Credit: batak1 / iStock)