Lawmakers and citizens rarely talk about government spying. However, it has kept Washington buzzing in an unusually bipartisan fashion for the past couple weeks.
On January 18, Congress passed a bill reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA) for six years. On January 19, President Donald Trump signed the bill into law. According to the House Intelligence Committee, Section 702 of FISA “authorizes the Intelligence Community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes.”
What the committee fails to mention is that Americans’ data can also be caught and stored in the database. Law enforcement can then search through that data without a specific warrant.
After a set of contradictory tweets about the spying program from President Trump, the House of Representatives voted to reauthorize the program. A bipartisan group of Senators – including Rand Paul (R-KY), Mike Lee (R-UT, not present at press conference), Ron Wyden (D-OR), Steve Daines (D-MT), Patrick Leahy (D-VT), and even Elizabeth Warren (D-MA) – announced plans to filibuster the reauthorization. Unfortunately, this effort was defeated by a surprisingly narrow vote to limit debate on the measure. The Senate voted 65-34 to reauthorize the program for six years, and President Trump signed the bill into law.
FISA proponents link the spying program to national defense and fighting terrorism while claiming that Americans’ information is not targeted. Section 702 primarily targets foreigners, but massive amounts of data from Americans also gets caught and stored in databases. This information can then be searched by FBI, CIA, and NSA officials for information specifically about Americans to prosecute them, even though the information was obtained without a warrant.
In order to calm fears of “Big Brother,” FISA advocates tout the FISA Court. This court is a supposed stopgap between the government and a treasure trove of digital communications. However, this court’s proceedings are highly secretive, with only judges and government representatives present in the courtroom. Additionally, the FISA Court acts as a rubber stamp for the U.S. government: from 1979 through 2012, the first 33 years of the Court’s existence, it only rejected 11 of the more than 33,900 surveillance applications (0.03%) received.
Those in favor of the program see it as a crucial tool in the fight against terror. A study by the Heritage Foundation cites a report by the Privacy and Civil Liberties Oversight Board (PCLOB) – a bipartisan panel within the executive branch that monitors actions taken by the branch in the fight against terror while also considering civil liberty concerns – claiming Section 702 has aided the fight against terrorism. The details of this report, however, are classified.
The study expects us to trust the very people who are unconstitutionally spying on us. As a libertarian, I don’t trust my government that much.
There is a way to reform Section 702 that would keep America safe while also protecting Americans’ freedoms. Representative Justin Amash (R-MI) proposed an amendment to replace the FISA reauthorization bill with the USA Rights Act which would, among other things, require specific warrants for searches of the Section 702 database, strengthen FISA Court oversight, and end reverse targeting of Americans in FISA data gathering. These safeguards would protect the privacy of Americans while allowing the government to conduct surveillance on foreign targets. Unfortunately, this measure was defeated by a vote of 183-233.
Regardless of what big-government talking heads say, you can be in favor of strong national defense and Americans’ privacy protections. This will only happen if we send lawmakers to Washington who will stop the political theater and follow the Constitution.