Congress Fails to Rein in Warrantless Surveillance. Again

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Congress once again refused to limit warrantless spying by the NSA and other federal agencies.

Rep. Justin Amash (R-Mich.) and Rep. Zoe Lofgren (D-Calif.) proposed an amendment to an appropriations bill that would have effectively prohibited the warrantless collection of data from Americans under Sec. 702 of the Foreign Service Intelligence Act (FISA).

“The government can search and sweep in billions of communications, including communications of Americans, and then query that data,” Amash said on the House floor. “The Amash-Lofgren amendment puts in basic safeguards to allow the government to continue using Section 702 for its stated purpose of gathering foreign intelligence, while limiting the government’s warrantless collection of Americans’ communications under FISA.”

The U.S. House voted the amendment down by a 175-253 vote.

Violating your rights is a bipartisan sport. One hundred and twenty-six Democrats joined ranks with 127 Republicans.

Privacy and civil liberty activists condemned the vote. Fight for the Future Deputy Director Even Greer had particularly harsh words for Rep. Adam Schiff, chair of the House Intelligence Committee.

“It’s good to know that House Democrats like Adam Schiff are ‘resisting’ Trump by voting to ensure that he has limitless authority to conduct mass warrantless surveillance.”

As it stands, the government can collect data on Americans who are communicating with non-U.S. citizens without a warrant. As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

The Electronic Frontier Foundation explained the scope of FISA surveillance on Americans.

Section 702 allows the government to collect and store the communications of foreign intelligence targets outside of the U.S if a significant purpose is to collect “foreign intelligence” information.  Although the law contains some protections—for example, a prohibition on knowingly collecting communications between two U.S. citizens on U.S. soil—we have learned that the program actually does sweep up billions of communications involving people not explicitly targeted, including Americans. For example, a 2014 report by the Washington Post that reviewed of a “large cache of intercepted conversations” provided by Edward Snowden revealed that 9 out of 10 account holders “were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.”

According to a report released by the Office of the Director of National Intelligence (ODNI), there was a 28 percent increase in the number of targeted search terms used to query massive databases of collected Americans’ communications last year. The NSA conducted 9,637 warrantless search queries of the contents of Americans’ calls, text messages, emails and other communications during 2018. That was up from 7,512 searches on the year prior, according to the report.

Keep in mind that that just represents active searches of the database by the NSA. The very existence of the database indicates that the federal government has collected and stored reams of location information, phone calls, emails and other electronic data on Americans without a warrant.

Congress reauthorized Sec. 702 last year. Before approving a six-year extension, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.

As if you needed any more proof, the vote on the Amash-Lofgren amendment proves once again that Congress will never do anything to rein in the federal surveillance state.

In fact, Congress has had over 40 years to address these privacy issues. In 1975, Sen. Frank Church warned us about the surveillance state, saying it created the potential for ‘total tyranny.” That was before widespread public access to the Internet, before cellphones and before the proliferation of email. Today, the technological capacity of the NSA and other federal agencies exceeds anything Church imagined. And yet 40 years later, Congress hasn’t done anything to rein in the surveillance. It never will. That’s why it’s up to states to take action. For more information on how, click HERE.

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