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About FISA and The Potential Abuses

A common belief held among our founding fathers was that man is not truly free unless he is secure in his person from unwarranted searches without cause. Their first-hand experience proved its important. In the early 1760’s part of the increasing tension between the Colonies and Great Britain was the use of writs of assistance. These general search warrants were granted to customs officers by the British government, giving them the authority to search any place without cause. On top of that, the searcher was not held responsible for any damages they caused. Colonists protested that the writs violated their rights as British subjects.

The writers of the U.S. Constitution placed great importance on the fundamental right of a person to be secure in his person, papers and effects. Because of this, when they met in 1789, they placed it in the Bill of Rights as the Fourth Amendment.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”
~ The Fourth Amendment to the U.S. Constitution

The fight to protect each person’s right to privacy has never ended. One of the latest chapters in the continuing saga surrounds FISA, the Foreign Intelligence Surveillance Act. This act was created to provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It was first adopted by congress in 1978 and has been amended several times since then.

In 2008 title VII was added to FISA. As part of that addition, under section 702, our intelligence agencies (i.e. the NSA and FBI) were given more avenues, including expanded warrantless surveillance of foreigners’ communications, to use in their fight to detect future acts of terrorism. FISA is only supposed to be used in surveillance of foreign entities on foreign soil, but it has been shown that American citizens have had their data (emails, texts, and phone calls) included in the sweeping surveillance queries used under section 702. This has caused huge concern among avid proponents of the Fourth Amendment. Section 702 of FISA was initially set to expire in 2012, but was then re-approved by Congress for another five years.

While it may often seem like our federal government so easily forgets our Fourth Amendment protected rights, that isn’t entirely accurate. Thankfully, Liberty for All-backed legislators Senator Rand Paul and Representative Justin Amash, among others in the House Liberty and Freedom Caucuses, have been staunch defenders of each person’s right to privacy. Recently their fight to reform and build safe guards into FISA focused on S. 1997, otherwise known as the US RIGHTS Act of 2017. Unfortunately, throughout 2017 leadership in both Chambers of Congress attempted to push through S. 139 that re-authorized the FISA amendments section 702 without adding the safeguards that the US RIGHTS Act would have provided. For example, adding a requirement for a warrant to be obtained before conducting a query that would include American citizen’s data. Passage of the bill was pushed off until the new year, and on January 9th, 2018 the Senate approved the six-year extension by a vote of 65-34.

Less than a month later the House Permanent Select Committee on Intelligence released a memo covering their findings on several FISA surveillance warrants showing concern that the FBI may have abused the system to obtain these warrants.

Representative Justin Amash was quick to point out on Twitter that,

Senator Rand Paul added in a Press Release, “While I applaud the release of this memo, I also call for Congress to take immediate action to help prevent such behavior in the future. It is imperative it start by listening to Americans who have expressed outrage over its disregard for the Fourth Amendment and reexamining the powers it reauthorized right before we learned of the memo. Continuing to ignore the Constitution will only guarantee that others fall victim to government abusing its domestic surveillance powers.”

Ironically, many members of the congressional leadership who showed outrage at the implied FISA abuses in the memo are the same individuals who voted to give the NSA and FBI those powers through FISA and re-approved it as recently as January 2018. It would be great if they showed the same concern for the Fourth Amendment abuses in FISA, and worked with the same fervor to enact safeguards for it, as they have shown in speaking out their concern about the memo.

 

Resources:
https://www.britannica.com/topic/writ-of-assistance
https://www.cato.org/blog/spying-reform-makes-things-worse
https://www.congress.gov/bill/115th-congress/senate-bill/1997?q=%7B%22search%22%3A%5B%22s.+1997%22%5D%7D&r=1
https://www.congress.gov/bill/115th-congress/senate-bill/139?q=%7B%22search%22%3A%5B%22s.+139%22%5D%7D&r=1
https://www.washingtonexaminer.com/fisa-memo-full-text/article/2647942
https://www.paul.senate.gov/news/dr-rand-paul-calls-congress-rein-surveillance-state