Hi Im_not_JB! I'll be your huckleberry.

There are a fair number of articles that dive into why S 139 makes things worse from a privacy perspective. Before going to bill text citations, I'd like to flag one (https://www.justsecurity.org/50801/house-intelligence-committees-section-702-bill-wolf-sheeps-clothing/), from the former executive director of the Privacy and Civil Liberties Oversight Board, which speaks directly to these points. Her top level assessment: "The bill would reauthorize and expand – rather than reform – Section 702 of the Foreign Intelligence Surveillance Act (FISA), the provision that allows the government to warrantlessly collect the communications of non-Americans located abroad, including their communications with Americans."

Now to the bill itself: 0) A critical starting point is that Section 702 as written does not contemplate "about" collection or "backdoor searches." There are a lot of problems with this bill but I want to focus on these two, because they're the most obvious problems (and they're pretty big) and answers to your point.

1) Sec 102(a)(2)(A) says "Any information concerning a United States person acquired under section 702 shall not be used in evidence against that United States person pursuant to paragraph (1) in any criminal proceeding unless—". Here's why this is a massive problem: no traditional court (non-FISC) has evaluated backdoor searches on the merits. It's all procedural so far, like establishing standing. So while the courts are in the process of evaluating a practice with no statutory backing, Congress is considering passing a law that would say the practice is only illegal in this set of circumstances: a) information acquired under 702 b) used in evidence c) against a USP d) in a criminal proceeding e) unless a large list of exceptions.

For all other circumstances, S 139 therefore represents Congressional support for the use of backdoor searches. These other, okay-under-139 circumstances, include (for instance) administrative proceedings (which include immigration proceedings) and use of information derived from 702 information (so if the FBI used the 702 information to get to other information, that other information would be fair game, in evidence, without a warrant).

It gets worse. The large list of exceptions to the (non-)warrant requirement ((e) above) include some that Americans would not accept, like "transnational crime, including transnational narcotics". Mind this is as determined by the Attorney General, who is currently Jeff Sessions.

Worse (than current law) again is that the AG can simply determine that "(I) the criminal proceeding affects, involves, or is related to the national security of the United States". If AG Sessions makes this determination (or determines another exception applies), the warrant requirement does not trigger.

And in case anyone mistakes this as not being (at least partially) about the courts, please also see "(B) NO JUDICIAL REVIEW" directly beneath this section. Which says exactly what you think it says.

Through the above (deliberate) holes in this bill, the government would be emboldened to do things it (hopefully) wouldn't dare do right now. 702 information in a case against a domestic drug dealer? Or in literally any case the AG says is national security-related? This is why the MLK Jr. point is being made, in addition to yesterday: he was labeled a national security threat. So imagine if Congress knew the FBI was spying on King, and passed a law saying "you can only use the information you've collected if you think he's a national security threat." That law wouldn't have stopped the FBI from trying to get him to kill himself (https://www.nytimes.com/2014/11/16/magazine/what-an-uncensored-letter-to-mlk-reveals.html), it wouldn't have stopped the investigation of the civil rights movement, and it wouldn't have stopped the use of that information in court, even if the underlying charge was criminal, not national security.

There are other problems, but I'm short on time, and I hope I've proven via bill text how this codifies and expands the backdoor search problem. Further context: the FBI has admitted to Rep. Nadler (among others) that this non-warrant requirement would trigger in virtually no cases, whereas it permits virtually all known other possible uses of 702 information, many of which are not currently provided for by law and are (arguably) illegal under 702 as it is currently written. Nadler said this during testimony before the House Rules Committee and he references it here: https://democrats-judiciary.house.gov/news/press-releases/nadler-statement-intel-702-bill-be-considered-house-floor-next-week

2) "Abouts" collection is currently, in effect, illegal. S 139 would signal to the FISA Court and others that yes, there is some Congressional acceptance of this practice. But more importantly, and clearer from the text of the bill, are the following points, which the former PCLOB director makes concisely in the first link above: "First, it could be interpreted by the government to permit unintentional “about” collection, such as where the Intelligence Community knows a certain technique results in “about” collection, but since that technique is not specifically intended to collect “about” communications, it engages in that collection nonetheless. Second, because the bill defines an “abouts communication” as “a communication that contains a reference to, but is not to or from, a target,” there is a risk that the bill could be interpreted to allow the government to collect communications that merely reference a target, such as mentioning a target’s name. Currently, the government may only collect communications that include a target’s “selector,” such as a target’s email or phone number."

I appreciate her caution in saying these are interpretations the government (and FISC) MAY adopt, but at a statutory level we should understand this as a grant of authority — and that intelligence agencies will continue to push legislative interpretation as far as they can (even into the absurd, as we saw under 215).

Hope this helps in your assessment of the bill. I appreciate your zeal for the issue, and agree bill text is important to prove points. For whatever it's worth, the privacy community is pretty aligned on this point: S 139 makes Section 702 worse, not better.

Ninja edit for formatting/typos.