As the end of 2017 draws near, and the end of this legislative session draws nearer still, the Republicans have passed many bills, including one of the most important reforms of taxation since the Reagan years. However, one bill that the legislature did not manage to take a look at was the FISA Amendments Reauthorization Act of 2017.
Even if Congress and the Senate had come together in an attempt to rush the bill through in the last minute, it likely would’ve collapsed in the Senate, where Senators Rand Paul (R-KY) and Ron Wyden (D-OR) threatened to filibuster the bill until it could no longer be brought to a vote. This would mean that not only would the legislative year end on a loss for big-government proponents, but it would also ruin any forward momentum Republicans had after the passage of tax reform.
Without a reauthorization, many FISA powers are set ending, and this may not necessarily be a bad thing for citizens of the United States, especially those who are interested in maintaining online privacy. Indeed, allowing portions of the FISA Act to sunset is likely a better outcome for American citizens than approval of the FISA Amendments Reauthorization Act of 2017 would be.
The FISA Amendments Act is essentially the act that gives the National Security Agency (NSA) the right to view, record, and utilize in investigations or court proceedings, digital data, including emails, phone calls, text messages, instant messages, and even metadata. Section 702 of the FISA Amendments Act, in particular, is of concern, because while that is the section that governs who the United States government and its various agencies can eavesdrop on without a warrant, it seems that federal government is more than happy to ignore the limitation.
According to Section 702, the United States can, without a warrant, collect data from phones owned by non-U.S. citizens, foreign individuals, and basically anyone who is not a legal citizen of the United States or a foreign citizen currently legally residing in the United States. However, the issue is that the government, as revealed by Edward Snowden, doesn’t seem to obey that limitation, and collects everyone’s messages and data.
Agencies (mostly the NSA) then store this data in a searchable database which American law enforcement agencies can access, which these agencies do without a warrant, violating the Fourth Amendment and undermining even the most flimsy appearance of a ‘right to privacy’ where electronic messaging, calling, and data are concerned.
Our bicameral legislature in Washington, D.C. is generally happy to pass these reauthorization bills, usually with little to no scrutiny. However, thanks to Senator Rand Paul and other liberty-minded politicians, as well as the impending 2018 campaign season, it was impossible to convince politicians to force it through this year.
Senator Rand Paul of Kentucky made a number of statements condemning the attempts to reauthorize Section 702 in particular, including saying that “we cannot live in fear of our own intelligence community. They have such power to suck up every bit of every transmission, every communication we ever made. We can’t just have them willy-nilly releasing that to the public.”
However, just because the law has been allowed to sunset in theory, doesn’t mean it has in practice. According to lawyers in President Trump’s White House, a one-year certification for the NSA spying on citizens without probable cause or warrant means that the actual date of sunset will be April 2018, not December 31, 2017 at 11:59:59 P.M.
This means that Congress has about four more months to pass a reauthorization bill. Hopefully, they will use the time to listen to the concerns of citizens and to figure out a way to protect American citizens and legal residents from having their Fourth Amendment rights violated by unelected government bureaucrats without even so much as a probable cause warrant.
The only reauthorization bill that was presented for vote in the House was H.R. 3989, also known as the USA Liberty Act of 2017. Rarely has a bill received so dishonest a name, as the bill would not protect liberty in any way. Rather, the purpose of the bill was to remove any barriers preventing the NSA from sharing information with law enforcement agencies, including barriers requiring warrants.
Hopefully, given additional time, the legislature will be able to find a better way to authorize properly limited data collection without allowing the rights of United States citizens to be trampled with no recourse.