Wyden's Reform Bill Would Also Deter Misuse Of NSA Powers To Compel Tech Company Assistance

from the not-just-backdoors dept

Sen. Ron Wyden is again raising concerns about NSA tactics, this time through his recently-submitted Section 702 reform bill. The USA RIGHTS Act contains a number of improvements, including addressing backdoor searches of NSA data by federal agencies and increasing the reporting requirements for access of US persons communications and data. It also permabans the NSA's "about" collection -- one it shut down voluntarily after years of misuse but recently expressed an interest in restarting.

There's another form of surveillance being eyed by Wyden's bill: technical assistance. Marcy Wheeler points out some of the limitations imposed by the bill, which appear to target compelled assistance by tech companies.

(B) LIMITATIONS.—The Attorney General or the Director of National Intelligence may not request assistance from an electronic communication service provider under subparagraph (A) without demonstrating, to the satisfaction of the Court, that the assistance sought—

(i) is necessary;

(ii) is narrowly tailored to the surveillance at issue; and

(iii) would not pose an undue burden on the electronic communication service provider or its customers who are not an intended target of the surveillance.

This could refer to FISA-enabled pressure to backdoor encryption or allow the NSA to otherwise compromise hardware and software. And it may be Wyden's way of sending out a heads up to the general public.

This suggests that Wyden is concerned the government might use — or has used — FISA to make sweeping onerous technical demands of companies without explicitly explaining what those demands are to the Court.

No one should be surprised the government is -- or intends to -- use the FISA court to compel compliance. This is another tool it has at its disposal, going hand-in-hand with All Writs orders to cover government requests not explicitly allowed by existing law. As we saw in the government's most famous All Writs case -- its legal battle with Apple over the contents of the San Bernardino shooter's iPhone -- these expansive orders predicated on a 1789 law still have their limits. As more companies fight back against government overreach, the NSA will need to keep its options open if it hopes to compel compliance.

But if it's going to do this, it needs to be on the record. This is what Wyden's bill would do: force the NSA (and other IC agencies) to detail their plans for compelled assistance and seek explicit approval for these actions from the court.

Filed Under: all writs act, compelled assistance, nsa, ron wyden, surveillance, usa rights act