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Congress Renews FISA Section 702’s Warrantless Mass Surveillance
– Photo: The House of Representatives passed FISA Amendments Reauthorization Act of 2017 on January 11th by a vote of 256-164. The Senate passed the bill on January 18th by a vote of 65-34-1. President Donald Trump signed the six year reauthorization of FISA Section 702 on January 19th, the same day it was originally set to expire
Congress missed a historic opportunity to reform an unconstitutional surveillance law, instead passing a version that makes it worse. Both Democrats and Republicans deserve sharp criticism for continuing to allow the NSA to engage in mass, warrantless spying.
After passing a temporary extension in December, both the United States Senate and United States House of Representatives passed a six year reauthorization of a controversial section of the Foreign Intelligence Surveillance Act (FISA). The section, Section 702, authorizes much of the warrantless global mass surveillance conducted by the United States intelligence community, which was exposed by whistleblower Edward Snowden. Section 702 was not added to FISA until an amendment was passed in 2008. The temporary extension was set to expire on January 19th and just days before that deadline passed a bipartisan group of five Senators attempted to filibuster the legislation, which is known as the FISA Amendments Reauthorization Act of 2017. The bipartisan group of Senators included three Democratic Senators, Senator Ron Wyden of Oregon, Senator Elizabeth Warren of Massachusetts, and Senator Patrick Leahy of Vermont, and two Republican Senators, Senator Rand Paul of Kentucky and Senator Steve Daines of Montana.
With the help of 21 Democrats, the U.S. Senate passed the Foreign Intelligence Surveillance Act (FISA) Amendments Reauthorization Act of 2017 last month, a bill that critics argue expands the government’s ability to spy on digital communications without a warrant.
Section 702 is supposed to do exactly what its name promises: collection of foreign intelligence from non-Americans located outside the United States. As the law is written, the intelligence community cannot use Section 702 programs to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.
The Senate vote is notable for the number of Democrats who supported the bill:
Numerous Democrats also helped shut down debate on the legislation earlier this past month, ensuring it would come a vote. California Sen. Dianne Feinstein, an early advocate of reforming the FISA reauthorization, switched sides during the debate and voted in favor of ending the debate to modify the bill.
This split in the Democratic Party may be an ominous signal of what’s to come in the November midterm elections, as progressive members of the party did not mince words when voicing their strong opposition to the bill:
— Ron Wyden (@RonWyden) January 18, 2018
Warrantless Surveillance Under Section 702 of FISA
Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities, and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.
Section 702 governs the domestic interception of foreigners’ communications, when the targets are believed to be outside the United States. Although externally directed, this statute is being used by agencies to monitor, collect, and search U.S. citizens’ communications for foreign intelligence and criminal activity. Congress had an opportunity to amend section 702 to safeguard U.S. national security, protect citizens, and comply with the Constitution, but they failed to do so.
“The #FISA702 bill you signed is much WORSE than the FISA law allegedly abused during the election. The FISA law you mention requires probable cause and a warrant. #FISA702 authorizes unconstitutional, warrantless spying on Americans. Your action puts everyone’s privacy at risk,” Rep. Amash tweeted in response to the President’s tweet. Just a few months into his term as President, Trump’s administration came out strongly against reforming FISA.
On the day the Senate voted to pass the FISA Amendments Reauthorization Act of 2017, it was revealed that a top secret document outlining serious abuses of FISA that occurred was shown to members of Congress and could be released later this month. On the same day President Donald Trump has signed the FISA reauthorization bill into law, Representative Matt Gaetz of Florida’s 1st District went on television and mentioned the abuse of FISA. The document is alleged to be a House Intelligence Committee Memo which highlights abuse of FISA warrants. Trump seemingly meant to point out that spying on his presidential campaign was unrelated to Section 702, but as Representative Justin Amash of Michigan pointed out on Twitter, Section 702 surveillance is even worse, as it allows the NSA to collect huge amounts of internet traffic on people who are not even suspected of being involved in a crime.
Section 702 of FISA will remain law until at least December of 2023, when Congress will either reauthorize it or will allow the section of the law to expire. FISA was originally passed in 1978 in the wake of revelations of wrongdoing by the US intelligence community. Many have called the secret Foreign Intelligence Surveillance Court (FISC), with secret interpretations of law, secret rulings, and secret general warrants to be unconstitutional. Many supporters of FISA claim that the law only captures surveillance on foreign suspects, but the fact is that the NSA is capturing the contents of Americans electronic communications and even diverts American internet traffic overseas in order to get around prohibitions on domestic spying.
Legislators in both the House of Representatives and in the Senate tried to amend FISA to reform the law and work towards restoring the privacy rights that are supposed to be guaranteed and protected by the 4th amendment of the United States Constitution. One piece of legislation designed to reform FISA that lawmakers tried to pass in Congress was the Uniting and Strengthening America by Reforming and Improving the Government’s High-Tech Surveillance Act of 2017, better known as the ‘USA RIGHTS Act.’
Numerous advocacy groups also expressed outrage in response to the Senate vote.
Many civil liberties and privacy rights organizations supported the USA RIGHTS Act and the bill received support from groups across the political spectrum, such as the American Civil Liberties Union (ACLU), FreedomWorks, Restore the Fourth, Campaign for Liberty, and the National Association for the Advancement of Colored People (NAACP). The USA Rights Act failed to pass in both the Senate and the House of Representatives. The bipartisan filibuster in the Senate was crushed when Senators voted to end the debate with a motion for closure.
“Congress abdicated its responsibility to ensure that our intelligence agencies respect the Fourth Amendment,” Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, said. “Instead of instituting much needed reforms, lawmakers voted to give the Trump administration broad powers to spy on Americans and foreigners at home and abroad without a warrant. No president should have this power, much less one who has endorsed policies designed to unfairly target critics, immigrants, and minority communities.”
“Nevertheless, the fight over this authority is far from over,” Singh continues. “The ACLU is currently challenging warrantless surveillance under Section 702 and will continue to fight this unlawful surveillance in the courts. We will use every tool at our disposal to stop the continued abuse of these spying powers.”
The EFF expanded upon FISA’s infringement on the 14th Amendment in a series of tweets last month, shortly after the Senate vote. Read the full thread here.
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