Sen. Tom Cotton, R-Ark., speaking during a Senate Intelligence Committee hearing last month about the Foreign Intelligence Surveillance Act. (Alex Brandon / AP Photo)

A controversial surveillance measure set to expire at the end of 2017 could be made permanent through a new piece of GOP legislation. Arkansas Sen. Tom Cotton proposed Senate Bill 1297 last month, which addresses a critical component of the National Security Agency’s warrantless surveillance program.

At stake is Section 702 of the Foreign Surveillance Intelligence Act (amended in 2008), which allows U.S. surveillance of foreign communications. The Electronic Frontier Foundation explained:

Section 702 surveillance violates the privacy rights of millions of people. This warrantless spying should not be allowed to continue, let alone be made permanent as is.

As originally enacted, Section 702 expires every few years, giving lawmakers the chance to reexamine the broad spying powers that impact their constituents. This is especially crucial as technology evolves and as more information about how the surveillance authority is actually used comes to light, whether through government publication or in the press.

If Congress were to approve Cotton’s bill, lawmakers would not only be ignoring their constituents’ privacy concerns, but they would also be ceding their obligation to regularly review, debate, and update the law.

Cotton’s bill is receiving support from fellow Republican senators, although criticism of the bill does not fall neatly along partisan lines. On June 7, lawmakers discussed the legislation during a hearing in Washington. The New York Times reported:

“This is a tool that is essential to the safety of this country,” the F.B.I. director, James B. Comey, told Congress at a hearing on Wednesday. “I did not say the same thing about the collection of telephone dialing information by the N.S.A. I think that’s a useful tool; 702 is an essential tool, and if it goes away, we’ll be less safe as a country. And I mean that.”

Mr. Comey also warned that one of the proposed changes — a new requirement that a warrant be obtained to search for Americans’ information in the surveillance repository — risked a failure to “connect dots” about potential threats.

But Representative Ted Poe, Republican of Texas, sought to warn other lawmakers that Congress needed to impose a warrant requirement.

“Privacy is being betrayed in the name of national security,” Mr. Poe told congressional aides at an event to discuss Fourth Amendment issues and legislation late last month.

Cotton argued during the hearing that “to allow this program to expire on December 31 would hurt both our national security and our privacy rights.” He also used the London terror attack of early June as evidence for the need for increased surveillance. Cotton said:

The attacks in London last weekend exposed in a matter of minutes just how vulnerable our free societies truly are. All it takes is a van or a knife and an unsuspecting bystander to turn a fun night out on the town into a horrific nightmare. Course, we shouldn’t need any reminders, but let me give one yet again: We are at war with Islamic extremists. We have been for years, and, I’m sorry to say, there’s no end in sight. It’s easy to forget this as we go about our daily lives, but our enemies have not-and they will not. They’ve never taken their eyes off the ultimate target either: the United States.

Yes, we’re at war with a vicious and unyielding foe. And just as our enemy can attack us with the simplest of everyday tools, the strongest shield we have in our defense is just as basic: It is the intelligence information of knowing who is talking to whom about what, where, when, and why. After the 9/11 attacks, our national-security agencies developed cutting-edge programs that allowed us to figure out what the bad guys were up to and stop them before they could perpetrate such heinous attacks. Very often the intelligence they’ve collected has made the difference between life and death for American citizens.

He concluded by noting the bill “has the support of every Republican senator on the Intelligence Committee.” Other members of the intelligence community have expressed support for the legislation as well. Tech Crunch provided further analysis of the June 7 hearing:

NSA Director Michael Rogers broke down two scenarios in which the core controversy, namely the incidental violation of the right to privacy for U.S. citizens, comes up. He claimed that in 90 percent of cases, that form of collection is a result of two foreign targets who talk about a third person who is in the U.S. As Rogers tells it, 10 percent of the time a foreign target ends up talking to an American citizen. Because American citizens have Fourth Amendment rights, running into Americans in the course of foreign surveillance creates the sticky situation known as incidental collection, a major focus for privacy advocates seeking reform.

In the course of justifying Section 702 as an invaluable tool for counterterrorism and counterproliferation efforts, Director of National Intelligence Dan Coats claimed that agencies have made “herculean” efforts to get a count on how many Americans have been affected, but in spite of those efforts it remains impossible. He went on to undermine his argument by implying that it probably would be possible, but that he chooses not to allocate resources to the task when the intelligence community could be focusing on imminent concerns in countries like Iran and North Korea. “I can’t justify such a diversion of critical resources,” Coats said.

He went on to note that without Section 702, intelligence agencies would have to obtain a court order issued due to probable cause — ostensibly the bar that needs to be cleared in order to surveil U.S. citizens. “That’s a relatively higher threshold than we require to foreign intelligence information,” Coats said, noting that he’d prefer not to need to clear the Fourth Amendment bar when investigating foreign targets.

In a broad appeal on 702’s utility, Rogers went so far as to claim that 702 “[created] insights on the Russian involvement in 2016 election,” providing intelligence that would otherwise not have been possible.

There is, however, growing opposition to the bill. The American Civil Liberties Union has argued against it, as has California Democrat Dianne Feinstein.

“Sen. Dianne Feinstein—who has historically been sympathetic to the intelligence community—said she could not support a bill that makes Section 702 permanent,” according to the Electronic Frontier Foundation. “We cannot accept lawmakers ignoring our privacy concerns and their responsibility to review surveillance law, and our lawmakers need to hear that.”


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