Reforming Intelligence and Securing America Act
Floor Speech
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Mr. CLINE. Mr. Chair, I rise in support of these vital reforms to the Foreign Intelligence Surveillance Act, especially section 702.
While H.R. 7888 in its current form includes many provisions that the Judiciary and Intelligence Committees agree on, it falls short of preventing numerous documented abuses by our government against U.S. citizens.
Congress must act to protect Americans' privacy and civil rights. To do that, any legislation that reauthorizes FISA section 702 must also include a warrant requirement for searches of Americans' communications collected; an end to the law enforcement and intelligence agencies' purchases of Americans' location data and other sensitive information; the reporting requirements offered by Congressman Roy and my amendment, which would permanently end the practice of ``abouts'' collection, which has long been a controversial subject.
On top of collecting communications to or from the selector of an intelligence target, upstream collection of communications from companies that operate internet cables that interconnect with ISPs' local networks has included the collection of communications about the selector.
FISA court opinions from 2011, since declassified, have shone a light on this type of collection and noted that it resulted in the collection of ``tens of thousands of wholly domestic communications each year'' by the NSA due to what was described then as technical limitations in the implementation of ``about'' collection.
This practice has been halted by the FBI, but they have acknowledged that they maintain the right to initiate this upon notification back to Congress.
This must be codified in order to stop this type of abuse from occurring, and my amendment would do that.
Mr. Chair, I yield 2\1/2\ minutes to the gentlewoman from Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chair, I thank the gentleman very much.
I am delighted to be able to work with the gentleman from Virginia on what I think is crucial to codify, because as you said, the FBI had stopped doing it, but here we are again.
Mr. Chair, I yield 1 minute to the gentleman from Connecticut (Mr. Himes), the ranking member on the Intelligence Committee.
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Mr. CLINE. I yield to the gentleman.
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Mr. CLINE. For 1 minute.
Ms. JACKSON LEE. I have the time.
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Mr. CLINE. If the gentlewoman will yield back, I will yield a minute to the gentleman from Connecticut.
Ms. JACKSON LEE. He had yielded to me, but I will be happy to yield back so he can get his time.
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Mr. CLINE. Mr. Chair, I yield 1 minute to the gentleman from Connecticut (Mr. Himes).
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Mr. CLINE. Mr. Chair, I yield such time as she may consume to the gentlewoman from Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chair, I thank the gentleman from Virginia, the home of my alma mater, the University of Virginia School of Law, and the gentleman from Connecticut, also the home of my alma mater.
To be able to find collegiality in a very important question for the American people is very much a statement that should be made.
This amendment does something Congress should have done 7 years ago, as I have indicated, prohibiting the government from resuming ``abouts'' collection, a form of section 702 surveillance that poses a unique risk to Americans.
It is also very disturbing, Mr. Chair, because most Americans would scratch their heads and wonder why is this relevant to the immediate investigation. ``Abouts'' collection is a collection of communications that are neither to nor from an approved target of surveillance under 702, the Foreign Intelligence Surveillance Act, FISA, but merely contain information relating to that target. That means that you become a target because it happened to be sitting around you or it happened to be going to you or from you.
In the past, ``abouts'' collections focused on collecting communications that include a target's email or phone, address, Twitter handle, or something like that, but in theory ``abouts'' collection could be used to collect emails that merely mention a person who is a target of 702 surveillance.
I think it is extremely important to recognize ``merely mentions'' that individual, and you could have your materials, your private information, wrapped up in a roundup or a lassoing of the extended material that is scattered around you, and you could be subject to some kind of haul, if you will, a hauling in of data about you.
Nothing in the text or legislative history of 702 indicates that this type of surveillance is authorized. That is why I think this amendment with Mr. Cline is extremely important because it shows that we are working together.
Mr. Chair, I rise today in support of the Cline (VA)/Jackson Lee (TX) Amendment No. 3 to H.R. 7888--Reforming Intelligence and Securing America Act (RISAA).
This amendment does something Congress should have done seven years ago: prohibit the government from resuming ``abouts'' collection, a form of Section 702 surveillance that poses unique risks to Americans.
``Abouts'' collection is the collection of communications that are neither to nor from an approved target of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but merely contain information relating to that target.
In the past, ``abouts'' collection focused on collecting communications that include a target's email address, or phone address, or Twitter handle, or something like that. But in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of Section 702 surveillance.
Nothing in the text or legislative history of Section 702 indicates that this type of surveillance is authorized.
Under Section 702, the surveillance must target a non-U.S. person outside the United States. The term ``target'' has a well-understood meaning. When a person is a target, it means the government can collect that person's information or other data, not the communications or data of other individuals.
As we all know, ``abouts'' collection under Section 702 has a sordid history.
The National Security Agency (NSA) used ``abouts'' collection when it was conducting upstream surveillance, in other words, when it was intercepting communications directly as they transited over the Internet backbone, rather than collecting stored communications from service providers.
Not surprisingly, this practice resulted in the collection of tens of thousands of purely domestic communications--communications between and among Americans inside the United States.
Moreover, often these Americans were not even discussing the target. Instead, their communications were lumped in with other communications, transiting over the Internet backbone as a packet. The NSA was collecting the entire packet of communications, simply because somewhere in that packet was a reference to information about a target.
This was a problem from the moment Section 702 went into effect in 2008. And yet for years, the government did not disclose this problem to the FISA Court.
To the contrary, the government affirmatively misrepresented how the program was working. It was not until 2011 that the court learned the government was sweeping in tens of thousands of purely domestic communications.
The court was livid. It noted that the belated disclosure, and I quote, ``marks the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.''
At the time, the court chose not to prohibit the use of ``abouts'' collection. But it held that special minimization rules were required for upstream communications, and that without those rules, the program would violate both Section 702 and the Fourth Amendment. One of those rules was a prohibition on U.S. person queries of communications obtained through upstream surveillance.
Five years later, the NSA discovered that its agents had been routinely violating this prohibition. But rather than immediately report these violations to the FISA Court, the NSA waited for several months. When it finally admitted the violations, the FISA Court chastised the NSA for its ``institutional lack of candor,'' and refused to approve the continuation of Section 702 surveillance until the NSA cleaned up its act.
The NSA proved incapable of bringing its agents into compliance. The agents continued to routinely search though the upstream data in an effort to find and review Americans' communications, in violation of Section 702, the Fourth Amendment, and the FISA Court's orders. Well aware that the court would not continue to approve Section 702 surveillance under these conditions, the NSA, in 2017, made the only decision it could: it terminated ``abouts'' collection.
Well, it has now been seven years since the NSA stopped ``abouts'' collection, and the government has not claimed that ending this practice has resulted in a loss of critical intelligence or had any other kind of negative impact on national security. No official has pointed to a single bad result that could have been averted through the use of ``abouts'' collection.
Collecting communications that are neither to nor from an approved target of surveillance is contrary to the text and intent of Section 702.
It inevitably results in the collection of wholly domestic communications, which Section 702 expressly prohibits.
Over the course of a decade, the NSA proved that it was incapable of operating ``abouts'' surveillance responsibly and in accordance with the law--and the past seven years shown that ``abouts'' collection is not necessary for national security.
It is time for Congress to shut the door on ``abouts'' collection.
In the future, if the government can show that it needs ``abouts'' collection for national security purposes and that it can operate the program without violating the law and the Fourth Amendment, it can come to Congress and ask for authorization. But the burden should be on the government to show the need and the ability to lawfully conduct the program.
For these reasons, I urge my colleagues to vote in favor of the Cline/Jackson Lee Amendment No. 3.
Mr. Chair, I include in the record a letter from Representative Cline and myself listing the groups in support of this amendment. Congress of the United States, Washington, DC, April 12, 2024.
Dear Colleague: Please join us in supporting our amendment to H.R. 7888, the Reforming Intelligence and Securing America Act. Rules Amendment No. 5 would end what is known as ``abouts'' collection, which involves the capturing of massive amounts of communications by government agencies such as the National Security Agency (NSA) in which the selector, for example, an email address, of a target appears somewhere in communications, even if that target is not a party to the communications. It has long been controversial.
The FISA Court previously discovered that the government had misrepresented its activities and held that handling this type of data was of significant concern and a violation of the Fourth Amendment. Although the NSA abandoned the practice of ``abouts'' collection in 2017, Congress in 2018 amended FISA to prohibit this type of collection unless the AG and DNI notify the House and Senate Intelligence and Judiciary Committees of its plans to resume such collection. But that only means that if the NSA notifies Congress, they can resume ``abouts'' collection at any time. Our amendment would proactively end the practice for good.
The following groups support this important amendment:
Freedom Works--Key Vote; Due Process Institute; Americans for Prosperity; Project for Privacy and Surveillance Accountability; Reform Government Surveillance; Center for Democracy and Technology; American Civil Liberties Union; Electronic Privacy Information Center (EPIC); Restore the Fourth; Defending Rights & Dissent; Brennan Center for Justice; Wikimedia Foundation.
Demand Progress; Electronic Frontier Foundation; Project on Government Oversight; United We Dream; Asian Americans Advancing Justice; Muslim Advocates; Free Press Action; National Association of Criminal Defense Lawyers; Freedom of the Press Foundation; New America's Open Technology Institute; Fight for the Future; Stop AAPI Hate.
We urge you to vote in favor of Amendment No. 5. Sincerely, Ben Cline, Member of Congress. Sheila Jackson Lee, Member of Congress.
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