Surveillance

Senate Renews FBI Surveillance Powers With Modest Reforms

An effort by Sen. Rand Paul to forbid warrantless investigation of citizens was soundly defeated.

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An attempt by Sen. Rand Paul (R–Ky.) to completely end the Foreign Intelligence Surveillance Act (FISA) court's authority to approve warrantless surveillance of Americans went down in flames this afternoon in a blowout 11–85 vote. The Senate subsequently passed a bill that renewed some of these powers with more modest reforms.

Paul's legislation was essentially a Hail Mary pass: It would have forbidden the feds from targeting American citizens with any of the surveillance, wiretapping, and data collection tools authorized by the FISA court. The National Security Agency and the FBI would instead have to go through traditional federal courts and get a warrant. (The court could still allow surveillance of foreign targets.)

Prior to the vote, Paul took to the Senate floor to argue that the law has been woefully abused and twisted to target Americans, taking note that the FISA court had been specifically designed to make sure the FBI was not secretly surveilling Americans for engaging in protected or political speech. He said that the investigation of former Donald Trump aide Carter Page demonstrated that the FISA court "was manipulated and lied to" to get permission to wiretap Page.

"We should all be appalled at this abuse of power," Paul said. He argued that the FISA court denies Americans their Fourth Amendment protections, noting that surveillance targets aren't informed of the warrant submission and aren't allowed legal representation at a hearing. He added that the court's decisions are not based on "probable cause," as the Fourth Amendment requires, but on a lesser threshold showing that the requested surveillance is "relevant" to an investigation.

"That's not constitutional and we can't make it constitutional," Paul said.

The most recent transparency report from the Office of the Director of National Intelligence shows that despite reforms to the system, FBI officials secretly query records for information about U.S. citizens thousands of times a year. The report also says that the federal government has not opened any investigations of "a U.S. person who is not considered a threat to national security" based on this acquired information since the office started tracking this info in 2017. Last year, the government entered evidence gathered from FISA surveillance in seven criminal proceedings.

The failure of Paul's bill should hardly come as a surprise after another surveillance vote yesterday. Lawmakers weren't even able to push through a measure telling the FBI it can't collect our browser and search data without getting a warrant. There was no chance the Senate was going to vote to stop all targeting of Americans via the FISA court. Still, 11–85 is a pretty sound defeat.

After Paul's proposal failed, the Senate voted on H.R. 6172, a compromise bill to restore some USA Freedom Act surveillance powers (which expired in March) with some reforms. The bill easily passed, 80–16. The authority to engage in mass collection of Americans' online and phone metadata is now officially gone. The bill specifies that the FBI can't treat cell phone location and global positioning system data as part of a "business record" (meaning it's harder for the feds to secretly collect that data from your phone service provider). The bill also bolsters the FISA court's ability to bring in independent "amicus curiae" advisers to consult and defend the constitutional rights of any Americans who are being targeted for FISA warrants. (This process was bolstered further on Wednesday, when the Senate passed an amendment attempting to ensure that Americans aren't targeted for political purposes.)

Because the Senate amended H.R. 6172 yesterday, the bill will have to return to the House for another vote. It will likely pass.

The renewal comes with another sunset in December 2023, so we're not necessarily stuck with this system forever. But as today's votes show, it's a long road to convince senators to treat Americans' Fourth Amendment protections seriously.

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  1. “But as today’s votes show, it’s a long road to convince senators to treat Americans’ Fourth Amendment protections seriously.”

    Hasn’t it always been that way?

    1. Last year, the government entered evidence gathered from FISA surveillance in seven criminal proceedings.

      This is clearly unconstitutional. Someone should be taking the case for the surveilled in these cases to court. Certainly the ACLU should be interested, along with some actual civil rights organizations. And a go-fund-me campaign could pay for this. Is anyone out there listening?

      1. seven.

        So, for a maybe on 7 foreign crimes, we get a giant loophole that can be manipulated for whatever purpose to allow a zero scrutiny surveillance of any American citizen?

        If they will lie and manipulate the court when the Republican nominee and Republican president elect is involved, what do you think they’ll do when you are involved?

      2. The ACLU is useless. That should be totally obvious by now.

        1. Donate to a real civil liberties organization, like the SPLC or ADL!

      3. I see what you did there and I approve.

      4. ACLU is useless. Too busy trying to ensure trans rights to gender reassignment surgery during COVID crisis.

  2. The House passed it with mild reforms too. Kind of takes both to pass a bill… not sure why the focus on only one entity.

    1. The Senate actually had amendments on the table to make it better. They went down in defeat but the House didn’t even try for any real reforms.

      1. That’s generally how this shit goes. Veto proof majorities in both.

  3. Too bad Trump is too much of a quivering pussy to veto it and make them override it

    1. What matters to Trump is if someone is spying on him.

      1. But maybe just maybe the abuse of carter page and michael Flynn resonates with trump because that was essentially done to spy on HIM and undermine both his candidacy and his presidency. Rand Paul often has trumps ear. Maybe just maybe this is one situation in which Trump would do the right thing.

    2. As far as I know, if a bill passes Congress with the the supermajority required to override a veto, the President never gets a chance to veto it in the first place; His approval is irrelevant at that point.

      1. No, he can still veto it. Then it goes back to Congress and they have to re-approve it with the supermajority. I remember one bill that was passed with a clear supermajority, vetoed but then Congress got cold feet and did not muster the necessary supermajority the second time around.

        1. Any bill can be vetoed.

          Also, the President can simply refuse to sign a bill. At the end of ten days, if Congress is still in session, the bill becomes law without signature. If Congress is no longer in session, then the bill fails, known as a ‘pocket veto’.

    3. Trump is a jester in the court of the wall street oligarchs. He has no power. Welcome to Amerika…the land of the free? The NSA has the former KGB beat by miles in its mass surveillance of US citizens.

    4. The last bill to pass congress and have a presidential veto is:

      https://www.congress.gov/bill/110th-congress/house-bill/6331

      It still passed afterwards.

      But please explain how not wasting time or energy is being a pussy. More likely he simply waits out the signing period and bill is deemed signed. Like is done with virtually every bill that has that level of congressional vote.

      I know you all think Amash is so dreamy because he accomplished so little but made so many show votes, but why the fuck bother with time wasting on losses? Some of you must live some pretty pathetic lives to deem that as your idealistic outcome.

      1. Because he’s the leader of the party in the majority in the Senate. Because the bully pulpit of the President is real. Because if Trump cares about saving Americans from the disgrace that his administration was put under he will veto it, even if just as a show of contempt for the FISA process. Because the optics matter.

        But he won’t veto it. He’ll sign it.

      2. “But please explain how not wasting time or energy is being a pussy.”

        When Biff walks by you and your wife and tells her she is a fat sloppy cunt with a pussy for a husband, you would do nothing right?

        Because you cant hit him, you’ll get charged with assault. Or maybe he just shoots you. Probably kicks your ass. So you cant do anything about it. So you would keep your mouth shut and save your energy without protest right? Because not wasting time and energy on him is the right thing to do, and def wouldnt make you a pussy.

        Im sure Trump is totes cool with it though, they just organized a coup, no bigs.

  4. “An attempt by Sen. Rand Paul (R–Ky.) to completely end the Foreign Intelligence Surveillance Act (FISA) court’s authority to approve warrantless surveillance of Americans went down in flames this afternoon in a blowout 11–85 vote.”

    Soooo how in the flying fuck is WARRANTLESS surveillance on citizens not unconstitutional on its face? I know the SC has pissed on the Fourth Amendment for years and years, but seriously. I guess the “If you have nothing to hide…” argument (among other bullshit arguments) has prevailed over the plain text of the goddamn United States Constitution.

    1. unconstitutional on its face

      Nothing magic about this item, then.

    2. You wrap the violation up in a rationalization, such as, “Hey, their cell phone location is only a business record. Not anything private.”

      1. Everyone knows that the Fourth Amendment applies only to written correspondence. Just like the Second Amendment only applies to muzzle-loading muskets using smoke producing black powder.

    3. I would not mind it, if the FBI conducted secret surveillance on the Senators and Congressmen on request from you or me, or any other inquisitive US citizen. If you have nothing to hide…let us look into your life as well. These laws have absolutely nothing to do with terrorism, it is all about spying, soviet style, on the political activities of US citizens. If there is one thing corrupt governments fear more than an enemy, it is their own citizens.

      1. Dianne Feinstein should be interested. She got upset when she found out they were monitoring her.

        Senate Intelligence Committee chair Dianne Feinstein (D, Calif.) made waves Tuesday when she publicly accused the Central Intelligence Agency of spying on Senate computers in an alleged attempt to thwart her committee’s investigation into Bush era interrogation and detention practices. The senator even suggested that the agency had violated the Constitution and federal law.

        But while Feinstein is up in arms about the intelligence agency’s search of her staff’s computer system and network, she has been an avid defender of National Security Agency surveillance programs. “It’s called protecting America,” she said shortly after the news broke that the NSA was collecting domestic phone records in bulk.

        WaPo 12-Mar-2014

        1. Voted to pass it again anyways.

        2. She likes her spies Chinese

    4. Soooo how is WARRANTLESS surveillance on citizens not unconstitutional on its face?

      BFYTW.

      Also, because 9/11 or something. In order to beat those freedom-hating terrrrrists we have to give up our freedoms… or something.

  5. it’s a long road to convince senators to treat Americans’ Fourth Amendment protections seriously.

    That is some rich stuff right there coming from you, mister “Russian collusion”.

    You really are one shameless motherfucker. Too bad for you that you have absolutely no credibility left whatsoever though.

    1. I am confused why you’re trying to attack one of the few people who did not, in fact, perpetuate the “Russian collusion” talking point, but good luck to you!

      1. I’d like to see his evidence.

      2. “one of the few people who did not, in fact, perpetuate the “Russian collusion” talking point”

        Also, excellent swipe at your peers, I likey.

      3. I’ll back Scott on this one. I felt like his coverage of the Mueller report was probably the least editorialized of anyone on the staff. Generally speaking he’s one of the most principled in regards to things like drug policy and the spying apparatus. He’s one of the good one’s left at Reason. You can easily click on his name and go back a read anything he wrote at the time.

      4. Why do you still refuse to acknowledge what has become apparent to pretty much everyone except the most rabid: that “Operation Crossfire Hurricane” was one the most blatant, Nixonian abuses of the FISA statutes since they were created?

      5. Then well rely on you to write about the Flynn case since your coworkers are clearly following the democrat playbook of calling any reporting on the Flynn case “the trump admin trying to distract from the covid disaster”

        Seriously…i will put money on reason publishing an article claiming Flynn is a distraction before they publish an article outlining the facts. That’s how much credibility this publication has lost in a mere 8 months.

      6. I for one appreciate that you’re willing to get into the trenches with us instead of passive-aggressively tweeting about us to your journolist friends.

  6. the FISA court had been specifically designed to make sure the FBI was not secretly surveilling Americans for engaging in protected or political speech.

    Citation needed.

  7. Look, it’s okay to curtail the right of the federal government to spy on good people, but they need all the freedom they can get to spy on bad people. Just a blanket restriction on the FBI spying on anybody at all is silly, they only need to be prohibited from spying on people they don’t need to be spying on. And obviously the FBI needs to spy on everybody to determine who they need to spy on so what’s the problem?

  8. >>Paul took to the Senate floor to argue that the law has been woefully abused and twisted to target Americans

    love the dude but the floor of Senate is no place to argue on behalf of Americans. thanks to the other ten who voted with.

  9. NYPD handcuffed a woman for not wearing her mask “correctly.” If you think FBI snooping is the problem you’re wrong. What is the problem is out of control Democrat mayors and governors who think they can abuse their citizens and the police who do their bidding.

    1. We only got one problem? Whatsamatter wit you?

  10. Americans went down in flames this afternoon in a blowout 11–85 vote.

    Well, there’s 85 Senators who should be out of a job in their next election.

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