FISA

The Senate Intelligence Committee Really Wants to Secretly Snoop on Americans

Every attempt to restrain and reform unwarranted domestic surveillance batted away.

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NSA chip
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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.

To wit:

  • 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.

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  1. Feinstein’s acting purely out of partisan spite – she’s the one who introduced a bill after the Snowden leaks popped out that she said would end the NSA doing anything illegal by the simple expedient of making anything the NSA did ipso facto legal. What a spiteful bitch.

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  2. 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.

    It’s called regulatory capture, and why should it surprise anybody that government acts like any other special interest group in seeing to it that its minders become its enablers?

  3. 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.

    Now why would the courts do that? Checks and balances stop the government from getting things done, and absolutely nothing happens without government. If not for government we would have neither the wheel nor fire. Ogg only discovered fire after receiving a research grant from the head of the clan. Everyone knows this. Besides that, checks and balances are an idea created by rich, white, slave owners. That right there means it’s a bunch of crap. No, the job of the courts is to show deference to the other branches. That way we get things done.


  4. 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.

    Such as eavesdropping on candidates for President and leaking information about them to the press without corroboration, or even a properly obtained warrant.

    But no, I’m sure our Democratic Republic is totally safe in the hands of the deep state.

    1. A citation is in order for the assertion that the government eavesdropped on one or more presidential candidates (in 2016 presumably). My fairly distinct recollection is that the government (that is, the NSA), in eavesdropping on Russian diplomatic and others, caught them talking to Trump campaign staff members. Eavesdropping on foreigners is what they do, legally and by the intent of the law. Since it is not reasonable or possible to eavesdrop on one end of a channel, it is a consequence that they will capture both sides of the communication. Those who communicate with likely foreign intelligence targets should know this and be extremely cautious about what they say or, perhaps, rethink whether they should do it at all.

      I also recall reading that there was a computer in Trump Tower that was being monitored under a fourth amendent warrant because it had been used for communication with a Russian bank that may have been subject to legal sanctions arising out of the Russian invasion of Ukraine. That is different from the sort of eavesdropping that FISA 702 covers.

  5. Jeff Flake approves

  6. Talking to Russians or other foreigners is not illegal in itself. Attorney General Sessions and some others are in a bit of trouble for hedging, omission, evasion, and maybe simply forgetting. Some discussions with foreigners in the context of a political campaign,might violate the law, but those would be equally illegal whether with Russians or Canadians.

    The problem with the collected communications is likely that Obama administration officials either sought and obtained, and ultimately leaked information about legal Trump campaign activity or failed to act promptly and decisively when they found illegal activity. Either constitutes inappropriate meddling with the US political system as much as did any Russian activity.

    The conversations and encounters the national media are so overwrought about seem to fall into three fairly distinct groups. First, some are almost certainly innocent, like Sessions’ meetings with Kislyak. Second are ambiguous ones, like Donald Trump, Jr’s meeting with Kushner and some somewhat dubious Russians, or Flynn’s talk with Kislyak in December (arguably illegal) which would have been legal, although possibly unwise, a few weeks later. Third would be conversations in which campaign officers sought, or agreed to receive, campaign help from Russian nationals or government officials. So far, that class seems to be empty, and publicly known facts seem to lean against it at least as much for Trump’s campaign as for Clinton’s.

  7. Comrades, it’s for your own good. What if your neighbor has thought crimes agains the collective? If you have nothing to hide, why can’t we monitor your thoughts? That is, unless you have something to hide.

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