Richard Burr has released his
draft Section 702 bill.
Contrary to what you’re reading about it not “reforming” 702, the SSCI bill makes dramatic changes to 702. Effectively, it makes 702 a domestic spying program.
THE SSCI EXPANDS THE KINDS OF CRIMINAL PROSECUTIONS WITH WHICH IT CAN USE SECTION 702 DATA
It does so in Section 5, in what is cynically called “End Use Restriction,” but which is in reality a vast expansion of the uses to which Section 702 data may be used (affirmatively codifying, effectively, a move the IC made in 2015). It permits the use of 702 data in any criminal proceeding that “Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,
- Death
- Kidnapping
- Serious bodily injury
- Specified offense against a minor
- Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
- Cybersecurity, including violations of CFAA
- Transnational crime, including transnational narcotics trafficking
- Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)
This effectively gives affirmative approval to the list of crimes for which the IC can use 702 information laid out by Bob Litt in 2015 (in the wake of the 2014 approval).
Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.
“So what?” you might ask, this is a foreign surveillance program. So what if they find evidence of child porn in the course of spying on designated foreign targets, and in the process turn it over to the FBI?
The reason this is a domestic spying program is because of two obscure parts of 702 precedent.
THE 2014 EXCEPTION PERMITS NSA TO COLLECT TOR TRAFFIC — INCLUDING THE TRAFFIC OF 430,000 AMERICANS
First, there’s the 2014 exception.
In 2014, the FISC approved an exception to the rule that the NSA must detask from a facility when it discovers that a US person was using it. I laid out the case that the facilities in question were VPNs (collected in the same way PRISM would be) and Tor (probably collected via upstream collection). I suggested then that it was informed speculation, but it was more than that: the 2014 exception is about Tor (though I haven’t been able to confirm the technical details of it).
NSA is collecting Tor traffic, including the traffic of the 430,000 Americans each day who use Tor.

One way to understand how NSA gets away with this is to consider how the use of upstream surveillance with cybersecurity works. As was reported in 2015, NSA can use upstream for cybersecurity purposes, but only if that use is tied to known indicators of compromise of a foreign government hacking group.
On December 29 of last year, the Intelligence Community released a Joint Analysis Report on the hack of the DNC that was considered — for cybersecurity purposes — an utter shitshow. Most confusing at the time was why the IC labeled 367 Tor exit nodes as Russian state hacker indicators of compromise.
But once you realize the NSA can collect on indicators of compromise that it has associated with a nation-state hacking group, and once you realize NSA can collect on Tor traffic under that 2014 exception, then it all begins to make sense. By declaring those nodes indicators of compromise of Russian state hackers, NSA got the ability to collect off of them.
NSA’S MINIMIZATION PROCEDURES PERMIT IT TO RETAIN DOMESTIC COMMUNICATIONS THAT ARE EVIDENCE OF A CRIME
The FISC approved the 2014 exception based on the understanding that NSA would purge any domestic communications collected via the exception in post-tasking process. But NSA’s minimization procedurespermit the retention of domestic communications if the communication was properly targeted (under targeting procedures that include the 2014 exception) and the communication 1) includes significant foreign intelligence information, 2) the communication includes technical database information (which includes the use of encryption), 3) contains information pertaining to an imminent threat of serious harm to life or property OR….[follow this link to read more about how the Fabulous Empty Wheel is one of like, ten journalists around the world who has her head screwed on right]
UPDATE: As of today, the Congress has extended the FISA bill, and section 702, which is, and has been, collecting data on American’s since 2001, and through “back door searches” using the data they gain on Americans to further target individuals with many un-Constitutional practices ranging from opening ‘investigations’ and then, hiding the fact that these investigations were started at the NSA; to outright “mind control and influence operations,” and much more as yet disclosed in public.
Or-what actual targeted individuals have been telling us ALL ALONG (as opposed to well financed disinformation and misinformation campaigns like these here.)
The good news however, is that we know with certainty that due to the “Tor exception” any and every American who uses Tor now has de minimis legal standing to challenge this collection. See this post, this one and this one for evidence and suggestions for lawyers and others who wish to build a case of that.
Then, have a look at the Guide to Government Hacking, at the top of ROGS, which was written by the ACLU, the EFF, and the NACDL for civil litigators and criminal defense lawyers in cases where government hacking is likely-which is every and any case, retroactive to 2001, now that we know with certainty that we are indeed being spied on every day.
Lastly-some 420,000 people in the US are spied on EVERY DAY, and we know this with empirical certainty because the NSA targets Tor users in the US, specifically. Here are those statistics from Tor, the Onion Browser-and another metric whereby we can gauge the veracity of the stories of those who claim they are “targeted indviduals:”
This table shows the top-10 countries by estimated number of directly-connecting clients. These numbers are derived from directory requests counted on directory authorities and mirrors. Relays resolve client IP addresses to country codes, so that numbers are available for most countries. For further details see these questions and answers about user statistics.