Jan 12 2018
This Friday, the House of Representatives passed the FISA Amendments Reauthorization Act of 2017, a bill that proponents claim adds key privacy protections to our nation’s foreign surveillance system.
Unfortunately, nothing could be further from the truth.
For example, proponents of the House bill claim that their legislation includes a new provision that requires the federal government to obtain a warrant before searching their spying database for domestic targets. And it is true; there is a new provision that requires a warrant to search the federal government’s dragnet databases under in certain circumstances.
But this new warrant “protection” also contains a huge loophole that any biased law enforcement officer could drive a hundred million dollar Special Counsel investigation through. Specifically, the warrant requirement only kicks in if the FBI is conducting a predicated criminal investigation.
The problem is that Intelligence Community investigations go through many stages, and a predicated criminal investigation is just the final stage. This means that during the first several stages of an investigation, government agents are free to use 702 collected data to spy on Americans without a warrant.
And once government agents have collected that information on domestic targets it is very easy for that information to end up on the front pages of The Washington Post and The New York Times.
It doesn’t have to be this way. We can preserve the federal government’s ability to monitor foreign communications and protect American citizens from terror attacks while still protecting American civil liberties.
The House bill should be amended to include a stronger warrant requirement. One that requires the government to obtain a warrant before it can access information on United States persons, no exceptions.
The House bill should also be amended to end “about” collection, which is the collection of communications that are not to or from a foreign target, but instead are communications that could merely contain a reference to an account of a foreign target.
For example, assume two Americans are emailing about current events and mention the name of a foreign target. Currently the federal government is forbidden from collecting this information, but under the House bill they would be allowed to do so. We must close this invasive spying loophole as well.
If the past year has taught us anything, it is that the federal government leaks like a sieve and any information that the government is allowed to collect has a good chance of appearing in the press as a political weapon.
The House FISA bill will only make this situation worse. Senate leadership must give senators the chance to improve this bill so American security and liberty can both be ensured.