- The Washington Times - Monday, October 23, 2017

The Senate Intelligence Committee will debate legislation to reauthorize a controversial foreign surveillance law behind closed doors Tuesday — a decision that spawned protest from at least one lawmaker who says the bill should be publicly discussed.

Section 702 of the Foreign Intelligence Surveillance Act, which gives federal agencies their snooping powers, is set to expire at the end of the year without reauthorization from Congress and lawmakers are debating various proposals that could limit spy agencies surveillance authority.

The draft set for consideration Tuesday was authored by Sen. Richard Burr, the North Carolina Republican who heads the committee.

According to a draft version of the bill posted online Monday by the website Lawfare, the proposal would codify instances in which information incidentally collected about Americans could be used in criminal cases against them — such as cases related to national security; in instances involving death, kidnapping, serious bodily injury, and certain sex offenses against minors.

Section 702 allows authorities to collect and review emails, texts, and other communications of foreigners who are located outside the United States, but Americans’ communications can be incidentally swept up in surveillance of other targets. Investigators can later query the information collected as they investigate other matters — a tactic civil liberties advocates say amounts to a “backdoor” warrantless search of Americans’ information.

Sen. Burr’s proposal would reauthorize the law through 2025.

The draft version would also enable agencies to restart collection of communications that merely mention a particular foreign target, rather than communications directly to or from that target. The attorney general and director of national security would have to notify Congress if they intend to restart the so-called “about” collection and Congress would have to pass legislation within 30-days in order to block that collection from taking place.

The National Security Agency stopped using the controversial form of surveillance this year after privacy concerns were raised. The NSA reported that it had “discovered several inadvertent compliance lapses” that involved queries of Americans.

Sen. Ron Wyden acknowledged that some discussion of the bill might have to be done in private if classified matters are brought up, but he wrote to Mr. Burr on Monday to ask that the committee try to hold open hearings on Section 702.

“This legislation will have enormous impact on the security, liberty, and constitutional rights of the American people,” the Oregon Democrat wrote. “The public has therefore taken a keen interest in the outcome of this mark-up and in specific proposed reforms to Section 702.”

Civil liberties advocates have sought changes to Section 702 authority they say are needed to better protect Americans’ privacy and limit instances in which their communications can be scooped up and reviewed.

Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, said Mr. Burr’s draft proposal does nothing to address concerns about the backdoor collection of Americans communications.

She noted that during past reauthorization debates, the House and Senate judiciary committees have held open hearings on Section 702 and held closed sessions to address any classified matters that may come up during debate.

“There is no need for an entirely closed mark up of this legislation, where the public has no real ability to hear the arguments and the positions that lawmakers take,” she said.

House lawmakers introduced reauthorization legislation earlier this month that advocates believe would rein in some of the objectionable practices. The proposal introduced by Rep. Bob Goodlatte and John Conyers Jr., the respective top Republican and Democrat on the House Judiciary Committee, would require investigators to ask a federal court for permission to use information collected under Section 702 in a criminal probe and it would end their ability to collect Americans’ communications with foreigners outside the U.S. based solely on the mention of a foreign surveillance target.

A competing Senate proposal from Mr. Wyden and Sen. Rand Paul, Kentucky Republican, is also expected to be introduced this week.

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