[Infowarrior] - Richard Burr's Section 702 'reform' isn't really

[Richard Forno]

Senator Burr Pitches 702 'Reform' That Would Give NSA Back Its Most Abused Collection Program

from the word-is-pretty-much-meaningless dept

https://www.techdirt.com/articles/20171023/16590038464/senator-burr-pitches-702-reform-that-would-give-nsa-back-most-abused-collection-program.shtml

The Senate Intelligence Committee has released its Section 702 reauthorization bill [PDF]. Rather than fix anything, it makes pretty much everything worse. This is largely due to Sen. Burr's influence, who probably felt he had to bring something to the debate, but couldn't bear to part completely with his "clean, forever reauthorization" dreams.

Senator Burr is somehow claiming this is a "reform" bill. Marcy Wheeler has written an excellent post describing all the ways in which it isn't, especially the tail end of the bill which pretends to limit US law enforcement access to NSA collections.

It does so in Section 5, in what is cynically called “End Use Restriction,” but which is in reality a vast expansion of the uses to which Section 702 data may be used (affirmatively codifying, effectively, a move the IC made in 2015). It permits the use of 702 data in a criminal proceeding for any criminal proceeding that “Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

Death

Kidnapping

Serious bodily injury

Specified offense against a minor

Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)

Cybersecurity, including violations of CFAA

Transnational crime, including transnational narcotics trafficking

Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

So, just the "serious" crimes. This is how agencies like the FBI are using 702 collections already. All Burr's bill would do is codify the use of foreign-facing national security agency to collect and retain communications related to domestic criminal activity -- some of it potentially rather minor.

Beyond that, the bill looks to give the NSA back its "about" program. This is the program the NSA abandoned after pushback from the FISA court and (perhaps) as a way to dodge uncomfortable questions about the continued collection of domestic communications. This was a voluntary move by the NSA and it was already asking to have its collection back a couple of months later.

Burr's 702 bill would hand the NSA back its program with a 30-day waiting period during which the House or Senate could introduce a bill forbidding the reinstatement of the program. Should no bill be introduced within the notice period, the NSA could pick up where it left off and go back to abusing a collection program it has never not abused since its inception.

It also allows the NSA to make "emergency" claims about its "about" program to bypass legislative attempts to block it. This wouldn't automatically nullify legislative efforts to end the about collection permanently, but it would allow the NSA to continue collecting while the issue is being debated.

So, it's basically what one would expect from one of top hardline supporters of the NSA. Good thing Burr is one of the top men in the "oversight" committee. He's willing to give the NSA what it wants -- along with the stuff it gave up -- and for more years than the House Judiciary Committee's tepid reform option. Burr's bill would push the next renewal fight off until 2025, two years more than the 2023 sunset in the House bill. Fortunately, there may be a third option in play soon. Ron Wyden has announced he's preparing a 702 bill and is pushing the Senate Intelligence Committee to make renewal hearings public.