Drawing on terms first proposed in a series of stalled-out data privacy bills that date back to at least 2018, the Government Surveillance Reform Act of 2023 (GSRA) narrows the focus specifically to warrantless government interception at all levels from federal to local.
The main thrust of the bill is to establish warrant requirements for some ongoing forms of data access that do not presently require them, but the GSRA would also put an end to “zombie” elements of the now-defunct Patriot Act and would address law enforcement use of private data broker files.
Government surveillance bill spans 200 pages, addresses numerous “loopholes”
Some of the names sponsoring the GSRA, such as House representative Warren Davidson and Senator Ron Wyden, have been attached to some of the many prior efforts to get a privacy bill comparable to the EU’s General Data Protection Regulation (GDPR) going in the US. Much of the present bill is assembled from portions of these prior bills, but with a very specific focus on government surveillance practices.
Much of the bill functions by slapping warrant requirements on elements of government surveillance that presently have little in the way of safeguards. One example is the FBI’s “Stingray” cell-site simulator program, essentially a “man in the middle” technique that uses signal catchers to intercept phone traffic in an area. The devices are meant to be used to track a specific target in areas that would otherwise require a warrant, but also scoop up data from other phones within range. Transparency into exactly what data is captured and how it is used has been a major legal issue, one recently taken up by the ACLU, as the FBI has been extremely secretive about its loaning out of these devices to local law enforcement agencies.
The “smart car” loophole is another element that the government surveillance bill addresses with a warrant requirement. Law enforcement agencies need court-issued warrants to search phones for certain types of information, but if that information is synced to a vehicle it can be taken without any court oversight. The bill would subject the digital storage systems of vehicles to the same rules that are already applied to phones.
And though it would not require a warrant, the FBI would be subject to stronger restrictions on how it can perform searches of “Section 702” data collected by the Foreign Intelligence Surveillance Act. As the name indicates, this bill was intended primarily for the tracking of international terror and trafficking suspects and its terms are not supposed to be applied to Americans. However, the bill allows a great deal of leeway in scooping up “incidental” data on domestic US residents that then enters a database that the FBI and other law enforcement agencies have relatively free access to. The government surveillance bill would require the FBI to at least demonstrate probable cause before running such a search.
Section 702 is an ongoing source of controversy. Regardless of the ultimate fate of the government surveillance bill, it is set to expire at the end of the year. The Biden administration wants Congress to renew it, as does the law enforcement community at all levels across the country. One of the sponsors of the bill, Senator Mike Lee of Utah, has suggested that the votes to reauthorize Section 702 (potentially until 2025) are up for trade in return for the passage of the GSRA. The administration has indicated that having to potentially go before a court and demonstrate probable cause would be a red line, however.
Bill proposes stronger restrictions on use of government surveillance programs
Should 702 be extended and the GSRA passed, subjects of FISA government surveillance would be granted a new right to challenge the action in court if they believe their rights are being violated. The government would also be required to disclose to surveillance subjects if 702 was used as the basis for collecting data about them intended for use in criminal proceedings.
Federal agencies would also face stronger restrictions on “reverse targeting,” or intentionally surveilling a foreign subject without a warrant in the hopes of obtaining the communications of the true intended domestic target through them. And private companies that cooperate with government surveillance would be required to publicly disclose more information about what they provide, and the government would have to publish new reports on its efforts in this area.
And though few specifics are yet available, the bill proposes greater restrictions on law enforcement agencies making use of third party data brokers that draw from social media, shopping information and other sources that might otherwise require a warrant to obtain a comparable level of data. If the information is purchased from a broker no warrant is required, and numerous law enforcement agencies have ongoing working contracts with various brokers.
Some specific actions by the FBI in recent years have triggered scrutiny by both the Privacy and Civil Liberties Oversight Board and the FISA Court, the latter of which has characterized the FBI’s ongoing government surveillance behavior as consisting of “persistent and widespread” violations. These actions include the deployment of cell signal interceptors to surveil over 140 participants during the George Floyd protests of 2020, poking into the communications of some 19,000 donors to a particular congressional campaign in 2021, and broad batch queries of journalists and political commentators.