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USA Liberty Act Won’t Fix What’s Most Broken with NSA Internet Surveillance

A key legal linchpin for the National Security Agency’s vast Internet surveillance program is scheduled to disappear in under 90 days. Section 702 of FISA—enacted in 2008 with little public awareness about the scope and power of the NSA’s surveillance of the Internet—supposedly directs the NSA’s powerful surveillance apparatus toward legitimate foreign intelligence targets overseas. Instead, the surveillance has been turned back on us. Despite repeated inquiries from Congress, the NSA has yet to publicly disclose how many Americans are impacted by this surveillance. 

With the law’s sunset looming, Congress is taking up the issue. The USA Liberty Act, introduced by Representatives Goodlatte (R-Va.), John Conyers (D-Mich.), Jim Sensenbrenner (R-Wis.), and others, may offer a chance to address some of the worst abuses of NSA Internet surveillance even as it reauthorizes some components of the surveillance for another six years. 

But the first draft of the bill falls short.

The bill doesn’t effectively end the practice of “backdoor searching,” when government agents—including domestic law enforcement not working on issues of national security—search through the NSA-gathered communications of Americans without any form of warrant from a judge. It doesn’t institute adequate transparency and oversight measures, and it doesn’t deal with misuse of the state secrets privilege, which has been invoked to stave off lawsuits against mass surveillance.  

Perhaps most importantly, the bill won’t curtail the NSA’s practices of collecting data on innocent people. 

The bill does make significant changes to how and when agents can search through data collected under 702. It also institutes new reporting requirements, new defaults around data deletion, and new guidance for amicus engagement with the FISA Court. But even these provisions do not go far enough. 

Congress has an opportunity and a responsibility to rein in NSA surveillance abuses. This…

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