The Enduring Surveillance Act of 2023

Here comes the legislative vehicle to save the expiring NSA and FBI surveillance powers called Section 702. Its (predictable) offer to reformers is: nothing! 

Edited by Sam Thielman

U.S. INTELLIGENCE'S SENATE ALLIES on Tuesday released their bill to save their treasured, post-constitutional surveillance authority, barely a month before what's known as Section 702 expires. The bill, predictably, preserves the NSA and FBI's sweeping ability to mass-collect and warrantlessly search through Americans' international digital communications records. And at a moment of heightened antipathy on Capitol Hill to Section 702, the bill concedes virtually nothing to surveillance reformers.

That means December will feature a legislative contest between this bill (along with its House counterpart) and its polar opposite, a bill championed by Sen. Ron Wyden (D-Ore.) that would create extensive surveillance restrictions and safeguards in exchange for letting Section 702 live another couple of years. FOREVER WARS wrote about that bill and its stakes earlier this month. Since surveillance is a pretty dry and technical topic, I'm not going to really recap that edition here—just click through to that piece if you want to get into both technical stuff and a broader overview. 

I had difficulty finding the Senate bill on Congress.gov, where it might not yet be posted, so I uploaded a copy of the full text here. 

The most important attribute of this bill is that it locks in Section 702's mass surveillance for 12 years. That means there won't be any leverage for reforming bulk surveillance for over a decade—a decade in which we're going to see a rapid maturation of artificial intelligence, which needs massive amounts of data to train on, organize, and mine—and which the NSA is obviously embracing in full. 

I think we can fairly call this a bill to make what was once emergency bulk surveillance into something semi-permanent, even if we can just as fairly debate whether that Rubicon was crossed by creating Section 702 in the first place. Back in 2008, 702 institutionalized the bulk digital surveillance of the War on Terror, but part of taking such a consequential step was to make its powers expire ("sunset") after four years. Congress in 2012 extended that sunset to five years. Congress in 2017 extended that sunset to six years. Extending it yet again to 12 years reveals the illusion behind the concept of sunsetting. The sun never sets on the surveillance empire. 

The privacy safeguards in this bill are pretty much nil. There's no requirement for the FBI to get a warrant before diving into the warrantless 702 troves in search of information concerning U.S. persons—which would close the infamous "backdoor search" loophole, something even the milquetoast institutionalists on the government's Privacy and Civil Liberties Oversight Board (PCLOB) endorsed in September. There's a prohibition on searching the database "solely" for information on criminal activity, but as long as an analyst can say they had an additional national-security purpose for such a search, the search is kosher. 

Then the bill requires additional training on the internal procedures for querying the Section 702 database, additional bureaucratic sign-off from intelligence-agency higher-ups—particularly on queries surrounding politicians—and another layer of internal compliance checks. These sorts of "we'll police ourselves" measures have been in place for the nearly 15 years 702 has existed and they've facilitated, not prevented, surveillance abuse at scale, so the point is to pantomime protections. Nothing here will change that—although, in fairness, requiring additional documentation when the FBI searches the troves for Americans, as the bill does, has a certain deterrent effect for the obvious Stringer Bell reasons. 

There's another pantomime in the bill: the creation of a congressionally-appointed surveillance review commission that will issue to the Hill a mostly classified report in seven years. Don't get your hopes up for reform from that commission, since the champions of this bill will appoint its membership. Should any substantial reform emerge from its report, this bill ensures there won't be a surveillance vote on 702 for another five years afterward. If anything, creating that commission just undermines the already-weak PCLOB. 

I've probably belabored the point, as there isn't much to say about a bill that does what it's expected to do. It's brought to you by the bipartisan leadership of the Senate Select Committee on Intelligence, Democrat Mark Warner of Virginia and Republican Marco Rubio of Florida. Joining them are Senators Lindsey Graham (R-SC), Roger Wicker (R-Miss.), Susan Collins (R-Maine), Angus King (I-Maine), Michael Bennett (D-Colo.), Bob Casey (D-Penn.), Kirsten Gillibrand (D-NY), Mike Rounds (R-SD), Mark Kelly (D-Ariz.), Amy Klobuchar (D-Minn.), Jerry Moran (R-Kans.), James Lankford (R-Okla.), and Sheldon Whitehouse (D-Conn.). 

I'm not going to handicap this bill's chances. Dell Cameron at WIRED reports that they may try to sneak renewal of 702 into the must-pass National Defense Authorization Act. We'll see how the civil-liberties coalition mobilizes in response, and whether it'll be enough to stop what we might as well call the Enduring Surveillance Act of 2023.

BEFORE WE CUT THIS OFF FOR SUBSCRIBERS, A COMICS OFFER! Recently someone asked if I could sell them signed copies of WALLER VS. WILDSTORM, the superhero spy thriller miniseries that marks my DC Comics debut. The trouble is that I don't sell comics. But my friend Hank Kwon, proprietor of Flatbush institution Bulletproof Comics, has you covered. 

If you go to Bulletproof's website starting later today, you'll find ordering information and prices for signed issues 1 to 3 of WALLER VS. WILDSTORM—and, starting on its Dec. 12 release date, the exciting fourth-issue conclusion! Once the fourth issue is out, Hank intends to offer at a discount all four signed issues as a WALLER VS. WILDSTORM set! Unfortunately, our hardcover collected edition won't be out before the holidays—though you should still preorder it, preferably through your local comic shop, but also from Amazon!—but Hank has saved the holidays. Give yourself or a loved one the gift of a story about the rise to power of DC Comics intelligence director Amanda Waller, and all the wreckage, exploitation and statecraft that took! Seriously, it's insanely well-reviewed and I would really like to do more comics work, so let's none of us let this flop. Go to Bulletproof Comics, online or on Nostrand Avenue!

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