FISA 702 Reauthorization

January 17, 2018

Mr. President,

Our Founding Fathers knew what it was like to live in a dangerous world.

When America was founded it was threatened by foreign adversaries. Its military might was feeble compared to the great powers of that time.

And yet, the Founders insisted on a Constitution that protected Americans’ civil liberties.

They knew that it was possible to defend the homeland and Americans’ rights at the same time. It still is.

The War of Independence was fought in part because King George III had abused “general warrants” that let his officers snoop through the papers and property of law-abiding subjects.

The Fourth Amendment to the Constitution was written to prohibit just this kind of snooping.

It prohibits “unreasonable searches and seizures” of Americans’ persons and property.

The Fourth Amendment also requires search warrants to be limited and based on probable cause that a crime has been committed.

Critics of the Fourth Amendment treat it like an annoyance to be circumvented—or even a security threat!

But our nation’s history should be enough to convince us that the Fourth Amendment is no annoyance, it is an essential safeguard of our liberty in the face of a vast, powerful, and frequently overreaching government.

Just think how much more powerful the government has become in the age of supercomputers and the Internet.

The kind of abuses endured by the Founding Generation will be repeated on an even grander scale if we are not vigilant in checking the government’s power.

Last night this body voted to close debate on a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.

This program may sound dry and inconsequential to your lives; supporters and critics agree that it is anything but.

FISA Section 702 authorizes the Intelligence Community to spy on suspected foreign terrorists.

This intelligence gathering is a valuable task that helps to defend the homeland from foreign threats.

However, FISA 702 also allows the collection of “incidental” intelligence about American citizens who communicate with foreign suspects.

Once the Intelligence Community has collected this “incidental” information about Americans, domestic law enforcement can access the information for their own investigations—without obtaining a search warrant as required by the Constitution.

In other words, FISA 702 opens a “back door” to government spying on American citizens.

This “incidental” spying is a different matter altogether, and it does implicate the Fourth Amendment.

It is profoundly worrying that the government maintains vast collections of information about American citizens, no matter how that information is collected—incidentally or intentionally.

It is likewise worrying that the government cannot—or will not—say how many Americans have been subjected to government snooping under this provision.

Surveillance programs like this one may be implemented with the best of intentions, but they provide the raw material that over-zealous bureaucrats can use to snoop on anyone they don’t like.

Maybe the subjects of government surveillance are overwhelmingly threats to the public. But can you guarantee that will always be the case?

What if next time the subject is a critic of the government or a petty political enemy? History cannot reassure us that this surveillance power will always be used for good.

And the only check on this frightening power is the so-called FISA Court, which rules in near-total obscurity about what the government is allowed to collect.

I say that the FISA Court is the only check because Congress certainly isn’t acting like one.

Not long ago the House handed us a bill that would re-authorize FISA 702 for another six years.

And I am sorry to report that many of my colleagues in the Senate are forcing this bill through as-is, without any amendments to protect Americans against warrantless searches by the government.

I believe that Americans’ Fourth Amendment rights are worth more due diligence than that.

Instead of rubber-stamping FISA 702, this body could have strengthened it by voting against cloture, which would have opened the bill up for amendments.

To be clear: A vote against cloture would not have been a vote against FISA 702. It would not have ended the program or jeopardized our nation’s ability to spy on suspected foreign terrorists.

But a vote against cloture would have allowed this body to improve FISA 702 through a legitimate amendment process.

It would have given us an opportunity to protect Americans’ safety and their constitutional rights—not one or the other.

What would changes to FISA 702 look like?

They would look a lot like the provisions contained in the USA Liberty Act, which Sen. Leahy and I introduced last year.

The USA Liberty Act would tighten the standard that the government must meet in order to collect and access information about you.

This safeguard, and any of the other provisions contained in the USA Liberty Act, would be worthy additions to FISA 702.

These changes would not restore respect for the Fourth Amendment overnight—it will take many more battles with the entrenched interests of government to achieve that—but they would be steps in the right direction.

If history is our guide, any unaccountable power we hand to government ultimately will be used against the people.

In FISA 702, the government has a vast grant of power—a digital-age “general warrant” to hoard untold terabytes of information about Americans.

I hope we can work together in the coming months to improve this surveillance program and vindicate what the Founders so clearly knew: That our safety does not have to come at the expense of our rights.