Written by Trevor Timm
Fight over FISA Amendments Act Moves to the Senate, as the House Passes the Broad, Warrantless Spying Bill
Yesterday, the House of Representatives voted to renew the dangerous FISA Amendment Act—which hands the NSA broad, warrantless surveillance powers over Americans’ international communications—for another five years. Sadly, the House refused to add any new oversight powers or privacy protections, despite ample evidence the NSA has used it to unconstitutionally spy on Americans. In fact, Rep. Lamar Smith, the bill’s co-sponsor, would not even allow any amendments to come up for a vote.
The 2008 law was originally passed to push the NSA warrantless wiretapping scandal under the rug. When the correct response was to strengthen American’s privacy protections, Congress instead severely weakened them. The FISA Amendments Act allows the NSA warrantless access to Americans communicating with a “target” overseas as long as the conversation deals with “foreign intelligence information”—a broad term that can mean virtually anything. Nor is the scope of an order narrow: one general court order from a FISA court potentially gives the NSA access to the communications of millions of people for a year. It’s the type of broad, untargeted search the Fourth Amendment was explicitly written to prevent.
Worse, we know the government has taken the powers given to them in this already unconstitutional bill and gone above and beyond them. In 2009, the New York Times reported the NSA was still collecting purely domestic communications in a “significant and systematic” way after the original bill passed in 2008. And it was revealed a couple months ago that the secret FISA court has ruled “on at least one occasion” that the government’s surveillance under the law had violated the Fourth Amendment.
Yet these facts were ignored by many of the representatives supporting the bill. As Cato Institute’s Julian Sanchez documents during the House debate, many made incorrect or false statements claiming the FISA Amendments Act only affects foreigners and not US-based citizens, that there’s no evidence Americans’ communications have been collected under the law, and that there is substantive oversight that prevents the NSA for abusing its powers.
Of course, the House could have amended the bill to make those statements true, yet they refused. They could have mandated the government release redacted versions of FISA court opinions, at least one of which we know ruled the NSA was engaged in unconstitutional surveillance. The House could also have forced NSA reveal a general estimate of how many Americans’ privacy have been violated. Or they could have required an individual warrant standard for the American side of the communications. None of these amendments were even were allowed to be voted on.
The fight to stop the warrantless wiretapping of American citizens now moves to the Senate, where just today, a bipartisan group of 13 Senators—led by Sen. Ron Wyden—sent a letter to the NSA demanding answers to a series questions about how many Americans have been illegally spied on, and how they’ll prevent it in the future. Wyden has also commendably put a hold on the bill in the Senate, and he says he will not remove it until the NSA gives the American public more information on its activities.
EFF urges the rest of the Senate to stand up for the Constitution and reject the FISA Amendments Act.
Trevor Timm is an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency. Before joining the EFF, Trevor helped the longtime General Counsel of The New York Times, James Goodale, write a book on the First Amendment. He has also worked for the former President of the ACLU and at The New Yorker. He graduated from Northeastern University and has a J.D. from New York Law School. Trevor also curates the Twitter account @WLLegal that reports on legal news surrounding WikiLeaks, the right to publish classified information, and other freedom of the press issues.