The U.S. House of Representatives this afternoon again approved the federal government’s ability to wiretap American citizens without even seeking a warrant.
The power comes through the lower house’s reauthorizing for five years the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). The current legislation is referred to as the FISA Amendments Act (FAA).
To assure passage of the bill, the Republican majority forced requirements that limited discussion to only one hour, and that no amendments could be added. The bill was approved 301-118.
The Senate has yet to vote on the proposed law. In June, Sen. Ron Wyden (D-Ore.), a senior member of the Senate Select Committee on Intelligence (SSCI), announced he will block unanimous consent requests to pass the five-year extension of the FISA Amendments Act.
Wyden identified two specific concerns Congress must address before agreeing to the long-term extension: (1) the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under FISA; (2) the law’s inadequate protections against warrantless “back door” searches of Americans.
I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act, then it is possible that this number could be quite large. Since all of the communications collected by the government under [the FAA’s] section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.
Congress approved FISA in 1978, and President Jimmy Carter signed it. That original law set procedures for surveillance of foreign powers and their agents. Lawmakers hoped to provide oversight of the federal government’s covert surveillance of foreign operations.
The government’s surveillance powers broadly expanded under President George W. Bush with the 2008 amendments, allowing secret surveillance without court order even of American citizens.
Civil liberties activists have opposed such broad powers, as have certain members of Congress besides Wyden. As far back as 2008, Congressman Dennis Kucinich spoke publicly against the amendments:
Provisions outlining the conditions under which a warrant can be issued are vague. They require no evidence of wrongdoing and contain no explanation of how the information will be collected. The bill also permits warrants of an undefined scope. They do not need to contain details about the facilities, places, premises or property to be searched. These provisions undermine America’s Fourth Amendment rights.
The Constitution dictates that the government must have cause to spy on U.S. citizens. But this bill ensures that all targeted international communication that the government intercepts is not covered by the Fourth Amendment even if a U.S. citizen is involved.
This year, Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC) and an adjunct professor at Georgetown University Law Center, opposed the amendments in his May 31 testimony before the House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. He noted that the legislation “authorized surveillance of foreign communications, including communication of U.S. persons, on a mass scale without adequate public oversight.”
The Electronic Frontier Foundation (EFF) on Aug. 31 filed suit against the federal Justice Department regarding the amendments. The lawsuit, according to EFF’s press release, demanded “answers about illegal email and telephone call surveillance at the National Security Agency (NSA).”
EFF Open Government Legal Fellow Mark Rumold said in the release:
For years we’ve seen news reports in the New York Times and other outlets about widespread government spying going beyond the broad powers granted in the FAA, but we’ve yet to get any real answers about what is going on. When law-breaking is allowed to remain secret, there’s no accountability or way to monitor future abuses. It’s time for the government to come clean and tell us about the NSA’s unconstitutional actions.
The amendments’ proponents argue that they will protect Americans in the war on terror.