With less than five months to go until Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires, we still do not have a clear path forward to a reauthorization that would also address the law’s substantial problems. A major reason for this is an impasse on what to do about the law’s most significant flaw: that it permits the government to seek out the content of Americans’ communications that have been swept up through Section 702 without any suspicion of wrongdoing, let alone a warrant, a problem known as “the backdoor search loophole.” Unfortunately, opponents of reforming the loophole have either failed to understand how the proposed fix to the loophole would actually work, or are describing it inaccurately in an effort to discredit reform.
A common critique of the fix has recently come forward. It wrongly argues that closing backdoor search loophole would require a probable cause warrant to access any information about Americans...
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Yes, the most important part of the fix is to require a probable cause warrant to review content—the same obligation that exists in every other situation where the government deliberately seeks out the content of an American’s communications. But the reform proposal for years does not impose that requirement for other types of Section 702 data queries.
Most notably, the text of amendments to close the loophole that were introduced by Reps. Thomas Massie (R-Ky) and Zoe Lofgren (D-Calif.) in 2014, 2015, and 2016 permit queries as authorized under all provisions of FISA and Title 18 of the US Code (domestic law enforcement surveillance provisions). This means that metadata searches that examine, for example, who someone has been corresponding with but not what they have said, can be conducted pursuant to the lower relevance standard – whereby government must simply show that the information sought could aid in furtherance of an investigation – permitted under FISA Pen/Trap laws and Section 215 of the PATRIOT Act, both of which are explicitly included in the reform language.
In full with links, Just Security: https://www.justsecurity.org/44125/opponents-closing-backdoor-search-loophol...