A newly released report from the Senate's Select Committee on Intelligence shows how thoroughly its members are resisting any efforts to protect Americans from unwarranted surveillance.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments is up for renewal this year, or it expires. Section 702 is intended to be used to authorize federal agencies to surveil communications for foreign targets for anti-terror, anti-espionage, and various national defense purposes.
But Americans are increasingly aware that the FBI and National Security Agency (NSA) have been using this authority to engage in domestic surveillance against American citizens for purposes far outside the open intent of the law. They're doing so secretly and without warrants, and Americans have little recourse in the matter.
As lawmakers consider renewing Section 702, there has been a big push by privacy activists and civil rights organizations to limit what the FBI and NSA may do and to reduce the amount of domestic communications the federal government is allowed to collect and access.
But it looks like the Senate Intelligence Committee isn't having it. They're advancing a bill by Committee Chairman Richard Burr (R-N.C.) that does pretty much the opposite of what civil liberties and privacy-minded folks would like and fully codifies that these tools intended for foreign surveillance can and may be used to fight domestic crimes and snoop on American citizens without warrants.
Elizabeth Nolan Brown noted in October how Burr's bill actually advanced the permission to use these snooping powers against Americans. The newly released report shows this is clearly the intent of Burr and the Senate committee. They voted down several amendments to attempt to make it clear that the law is not supposed to be used to snoop on Americans.
- The committee rejected a proposed amendment by Sens. Dianne Feinstein and Kamala Harris (both California Democrats) to require the government to get a probable cause warrant from the FISA court for domestic Section 702 search queries.
- The committee rejected a proposed amendment by Sen. Ron Wyden (D-Ore.) to prohibit using FISA to collect communications without a warrant that are known to be entirely domestic in origin.
- The committee rejected a proposed amendment by Wyden that would have codified a ban on using FISA to collect communications that are merely "about" a subject as opposed to communications that were to or from a subject. The use of "about" searches have currently been suspended because they resulted in the federal government getting unwarranted access to all sorts of communications they really had no authority to look at.
- The committee rejected a proposed amendment by Wyden to stop domestic "reverse targeting" via the FISA search authorities. This is a method where the feds target a foreigner for surveillance, but what they really want to do is hear what the people on the other end—including Americans—are saying.
- The committee rejected a proposed amendment by Wyden to further restrict the use of communications collected via Section 702 in legal proceedings.
When the generally terrible Feinstein is the one warning that people's Fourth Amendment rights are being violated, there is definitely a problem. Unfortunately, her courage didn't extend to voting against Burr's bill. Wyden, Harris, and Sen. Martin Heinrich (D-N.M.) were the only "no" votes.
Feinstein did include a minority statement (as did Wyden, Harris, and Heinrich) expressing her concerns about Burr's legislation. Feinstein notes that since the misuse of Section 702 against Americans has become public, there have been legal challenges. She thinks calling for a probable cause warrant "actually protects the program by preserving its core capability and putting it on more solid constitutional footing."
While it would be amusing if the courts struck down this carefully planned expansion of warranted surveillance authorities as unconstitutional, it would be much better not to have to depend on them. We should also find it discomfiting that the Senate committee that is responsible for overseeing and restraining our intelligence agencies to protect the privacy rights of voting citizens is doing the exact opposite.
Read the committee's report here.