Many hoped that as Section 702 of the FISA act reached its sunset date at the change of the new year, it would be left dead in the past. White House lawyers said that it would remain in effect until April, but for many, that seemed like an acceptable compromise to be rid of warrantless monitoring of American citizens.
However, this week the U.S. House of Representatives is considering legislation to not only renew Section 702 but to authorize its use to spy on Americans without a warrant or probable cause (something that the NSA has been doing illegally for years). Thankfully, a bipartisan group of Senators and Representatives, led by Rand Paul (R-KY) and Justin Amash (R-MI), is ready to fight against this terrible bill, even if it means standing on the floor of the Senate to filibuster it, and it appears they have a 200-member coalition ready to fight the bill.
Section 702 of the FISA act was designed to allow the U.S. government to spy on foreign nationals. Essentially, anyone who isn’t a citizen of the United States and isn’t within the border of the United States is fair game, under the act, to have their phone calls, texts, emails, and other communications intercepted and recorded by the National Security Agency (NSA). That is the scope of the bill as it was written.
What it turned into, however, is a different story. The NSA decided that they could monitor EVERYONE’s communications and record them in a searchable database. Further, they decided that they could make this database available to federal and local law enforcement agencies, who could search it without a warrant. Not only is this not within the scope of their authority, it is an obvious violation of both the letter and the intent of the law.
The bill being considered in the house goes in the worst direction possible for American citizens who are interested in protecting their right to some semblance of privacy. Instead of adding protections so that American citizens aren’t targeted by the NSA without due process, the bill would allow the NSA to intercept and track communications from American citizens without a warrant on the flimsiest of pretexts.
The bill presented in the House is called the FISA Amendments Reauthorization Act of 2017, and it is being pushed by the intelligence committees and their members, the same people who are supposed to be overseeing the intelligence apparatus in the U.S. to make sure they don’t abuse their power. The act is the same bill that did not get a vote in December of 2017 after Rand Paul and others threatened to filibuster it.
Justin Amash has presented Congress with a competing bill, one that would prevent the federal government from using illegally-collected communications from being admitted as evidence in court cases. The bill would also forbid the federal government from being able to use roundabout methods to spy on American citizens at home or abroad, such as ‘about’ spying where the NSA spies on people talking ‘about’ the alleged target of the spying, or ‘reverse targeting’, where the NSA spies on foreigners looking to record the conversations of American citizens conversing with them. Ron Paul is prepared to present a similar bill in the Senate.
Much of the modern practice of spying on communications came about after the 9/11 attacks in the United States. The United States and its citizenry felt like they were unprepared for the attack and unprepared to prevent a second one, and that lead to decisions being made that seemed like good ideas in the short-term, but that turned out to be terrible ideas once the overwhelming fear died down.
During the Obama years, it became obvious that not only was the NSA collecting information from every American citizen (in violation of Section 702), it was also making this information available to federal agencies like the ATF, DEA, and FBI, as well as to some local police forces. The problem is that all this data was being collected and that agencies were too lazy to even request the information be released from a secret FISA court (FISA courts have rejected a handful of requests in the last decade and a half).
Hopefully, this fight drags on as long as it needs to. If the intelligence committees in the Senate and House are not willing to institute some meaningful restrictions to protect the rights of U.S. citizens, the country would be better off to see Section 702 sunset.
It’s time that Republicans make a principled stance to protect the rights of citizens, and hopefully, Democrats are willing to follow their lead.