Forget the Fourth

Domestic surveillance

In 2008 Congress amended the Foreign Intelligence Surveillance Act (FISA), greatly expanding the federal government’s ability to secretly monitor its own citizens’ electronic communications without a warrant in the course of investigating terrorism or espionage.

The amendments were scheduled to expire in 2012 unless renewed by Congress. After waiting until the end of the year, Congress rushed to extend the authorization for warrantless surveillance without debate. A handful of senators had different plans. Concerned about the surveillance program’s privacy implications and its lack of transparency, four senators proposed changes.

Sen. Patrick Leahy (D-Vt.) wanted to shorten the program’s extension so that it would sunset again in three years instead of five. Sen. Jeff Merkley (D-Ore.) asked Attorney General Eric Holder to disclose secret interpretations of FISA on which the Justice Department relies in deciding which forms of surveillance are legal. Sen. Ron Wyden (D-Ore.) wanted an estimate of how many Americans’ communications have been subject to warrantless surveillance. Sen. Rand Paul (R-Ky.) wanted to make sure the Fourth Amendment applied to electronic communications, asking on the Senate floor why email receives less privacy protection than phone calls.

The proposed changes were all soundly defeated. The FISA amendments, which had already passed the House, were renewed unchanged by a 73-to-23 Senate vote.  

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