Tag: FISA

With over a week passed since the #ReleaseTheMemo controversy finally came to a head, it’s time to reflect more deeply on how we got here, and how domestic surveillance under FISA should and should not be conducted.

To recap: The memo in #ReleaseTheMemo refers to the memo written by the office of surveillance hawk Rep. Devin Nunes, Chair of the House Intelligence Committee. It alleges that the FBI obtained a FISA warrant to surveil a Trump advisor based on questionable, politically motivated sources.

The controversy relates to the efforts of the FBI to determine whether Carter Page, an adviser to the Trump campaign, was a paid agent of the Russian government. Page came under FBI scrutiny from 2013 onwards. The FBI submitted an application for a FISA surveillance order in October 2016, just before the presidential election. The evidentiary basis for this order was in part based on the “Steele dossier”, a document developed by a former British intelligence operative, as part of a contract with Fusion GPS. The work was part of Fusion GPS’ contract with the Democratic National Committee and the Clinton campaign to fund `opposition research’ into Trump. The FBI noted in the application that the Steele dossier materials were politically motivated, but, following the usual `masking procedures’ in such applications, did not identify that the people ultimately paying for the Steele dossier research were Clinton and the DNC.

Rep. Nunes’s staff then developed a classified memo setting out the deficiencies they observed in the FISA application, arguing that even if the FBI had found Steele reliable as a source in the past, to rely in part on the Steele dossier materials was inappropriate given that it was funded by the Clinton campaign; and also arguing that Steele had shown himself by October 2016 to be an unreliable source by speaking to the press about the contents of the dossier. Rep. Nunes then had the House Intelligence Committee vote, on partisan lines, to release that memo, and with the White House’s consent, it was released. A competing classified memo from the Democratic minority, which took issue with the Nunes memo’s characterization of the FISA order application, was passed for release by the Committee on Feb. 5, but was then blocked by the President on the grounds that it contains classified information. Now, Democrats may seek a vote of the full House to approve the Democratic memo for release.

 

The Nunes memo controversy has made strange bedfellows

People on the left, such as billionaire Tom Steyer, are arguing that, in order to oppose Trump, we should side with the FBI – the same FBI that continues to actively suppress peaceful movements on the left for social justice, and that pays confidential informants to manipulate poor and mentally ill people into taking steps to carry out acts of violence that are planned and funded by the FBI itself.

People on the right, such as multi-millionaire Sean Hannity, are arguing that the memo is not a partisan hack piece, but is “worse than Watergate,” proving that the Obama administration illegally surveilled the Trump campaign.

The truth, for the rest of us, is both more subtle and more worrying; but to understand it, we need a little history that TV talking heads aren’t equipped to provide. It’s been a long, slow boil that has spanned a little over four decades, and, to help with it, we’ve provided a character list and glossary of abbreviations.

 

FISA I

Post-Watergate and Pre-9/11

FISA was the main reaction of Congress to President Nixon’s illegal surveillance of the Democratic National Committee, and of political dissidents more broadly, uncovered as part of the Watergate scandal. Steering between the intelligence community, who wanted no court oversight of their spying on Americans, and the civil liberties community, who wanted real court oversight, it set up the controversial “Foreign Intelligence Surveillance Court”, or “FISC.” The FISC was a secret court, composed of a rotating set of appellate judges appointed by the Chief Justice of the Supreme Court that would hear only from the intelligence community, not from the person being surveilled or from anyone representing their interests. Its orders would generally be secret. FISC-approved surveillance was of individual US persons who might be agents of foreign powers. Being such an agent was not in itself a crime, so FISC orders fell short of the Fourth Amendment’s requirements for warrants. However, in terms of the supporting documentation required, the requirements for applications for FISC orders appear to generally be more onerous than the affidavits that support findings of probable cause in ordinary criminal cases. The result was that, through to 2001, there were relatively few individualized applications for FISC surveillance orders on US persons.

 

FISA II

The PATRIOT Act

9/11 enabled the Bush administration to push a set of expansions to intelligence collection that had been floating around Capitol Hill since they were originally proposed by Joe Biden in 1995, before the Oklahoma City bombing. This included changes to FISA, such that it was now possible to submit an application for a FISA surveillance order to the FISC even where the primary purpose of the warrant application was no longer to gather foreign intelligence. The result was an expansion in FISA orders, especially relating to the activities of Muslims in the United States.

However, this didn’t go nearly far enough for the Bush administration. They wanted to conduct mass, warrantless domestic surveillance, but FISA, being limited to surveillance of individuals, would obviously not allow that. Instead, they knowingly implemented an illegal program under executive authority alone, called STELLAR WIND. STELLAR WIND involved mining a large database of the communications of American citizens, including e-mail communications, telephone conversations, financial transactions, and Internet activity. President Bush originally authorized the collection of telephone and e-mail metadata only if one end of the communications was foreign or when there was a link to terrorism, but NSA went beyond their remit and also collected the metadata of purely domestic communications. Retroactively, Bush declared that they were allowed to do so, but that analysts were only allowed to look at metadata related to terrorism.

 

FISA III

The FISA Amendments Act and the Institutionalization of Mass Surveillance

STELLAR WIND was revealed, reluctantly, by the New York Times in late 2005, and several lawsuits were brought against telecommunications companies for participating in a manifestly illegal program. Congress’s reaction was the FISA Amendments Act of 2008, which gave the telecommunications companies immunity, and retroactively legalized the President’s illegal surveillance of the American people. The FISA Court of Review (FISC-R), a circuit-level court that meets extremely rarely to consider appeals of FISC decisions, also in 2008 became the first Court to rule that there was a “foreign intelligence exception” to the Fourth Amendment.

Now, FISA was no longer entirely about surveillance of individuals; despite the Fourth Amendment’s `particularity’ requirements, there were now so-called `programmatic warrants,’ where the FISC authorized surveillance on thousands or tens of thousands of `targets’ at a time. The `targets’ were all non-US persons; but the people they communicated with were often US persons. The number of US persons whose communications are `incidentally’ collected in this way is unknown, but probably numbers in the millions; NSA and FBI have tried strenuously for six years to avoid giving even an estimate of how many.

Two elements of this statutory authorization are especially controversial: “about surveillance” and “FBI backdoor searches.”

“About” surveillance relates to surveillance that is “about”, but not to or from, a foreign target. It is particularly likely to intercept US domestic communications. NSA has currently voluntarily suspended about collection, in order to get the FISC to sign off on continued collection under Section 702 of the FISA Amendments Act, which covers the mass collection programs. However, Congress’s reauthorization has directed that if NSA gets permission to restart about collection, and Congress does not act to prohibit it within 30 days, NSA can restart and even expand it.

“FBI backdoor searches” are warrantless FBI searches of NSA’s foreign intelligence database, to find information relating to domestic crimes. Such information can form the basis of criminal prosecutions, but is almost never in itself introduced in court, because if it is, defendants can challenge the method of its collection. Instead, using a practice known as `parallel construction,’ the law enforcement agency reconstructs a plausible chain of evidence and inferences that can be introduced and challenged in court, that conceals the origin of the criminal case in a tip provided by the 702 database.

In January of 2018, these surveillance powers, including “Section 702”, were reauthorized by Congress for a second time, in the teeth of growing opposition from around 40% of Congressmembers and Senators.

 

Indications of Ongoing Individualized Political Surveillance

As we can see from this history, the mere fact that individualized, politically motivated domestic surveillance is illegal is not enough to stop the NSA from doing it if it wants to, and the fact that FISA is the only statutorily approved method of doing it doesn’t mean that it is in fact the only method.

The most recent evidence of such non-FISA surveillance is the whistleblower testimony of Russell Tice, who left the NSA in 2006. He depicts a highly compartmentalized program within NSA (meaning that that only a small number of people with the agency have access to it), which targeted presidential candidates Barack Obama and Hillary Clinton, House and Senate Intelligence Committee members, Supreme Court Justices, and others with significant influence over NSA’s budget and activities. There is no evidence that this program has ended since then, or that it has ever been monitored by the FISC.

 

FISA: The Final Chapter?

Returning to Carter Page, what happened to him was almost certainly legal under FISA as originally passed. From the competing memos now being released, the FBI was not fully clear with the FISC as to the fact that Steele’s firm was being paid by Fusion GPS, which in turn was being paid by the DNC. The Grassley memo suggests that the FBI represented Steele as being a reliable source past the point where they should have re-evaluated his credibility in light of his desperate efforts to share the contents of his dossier with the press. But the FBI did not appear to need the Steele dossier in order to demonstrate a sufficient basis under current law for the FISC to approve a surveillance order.

However, that doesn’t, of itself, make it OK. Even in ordinary criminal prosecutions, requiring probable cause, officers are often slack in making sure that evidence for every assertion in a warrant affidavit is soundly based. They know that, because so few cases actually go to trial, it will be rare for their lack of thoroughness to be punished, investigated, or even suspected. This case, being high-profile, is now being deconstructed in the public eye, revealing procedural failings that are common, and commonly go unpunished and unnoticed by the courts. In the context of targeting a presidential campaign adviser for surveillance, the FBI should have meticulously ensured that every t was crossed and i dotted, and they did not. They should have assessed, in particular, whether Steele’s credibility had been compromised. They should also have requested to have the source of funding for the Steele dossier unmasked as part of the FISA application process. The White House should have been especially careful to avoid even the perception of political interference with an ongoing investigation, and in both the cases of the Carter Page investigation and the Hillary Clinton investigation, it appears that they were not careful enough.

FISC is a forty-year experiment in allowing the intelligence agencies to derogate down from probable cause requirements, in the hope that allowing them some latitude would encourage them to refrain from broader abuses. That experiment has failed. The history shows that allowing the intelligence community and the FBI to subvert constitutional norms only encourages them to push further; every compromise solution is taken as permission to stretch its language to the limit, and to collect and investigate as much as possible. Politicians enable this process because they are afraid that they will be blamed after a terrorist attack if they do not give the maximum latitude possible to the intelligence agencies and law enforcement.

There is no substitute for the full requirements of the Fourth Amendment, or for scrutiny of government surveillance requests in an adversarial court process. As FISA originally intended, individuals against whom a FISA order request is granted should be able to obtain copies of the FISA application and supporting documents, just as they are already in theory able to see their FBI files.

More broadly, given how deeply the FISC has been corrupted, and the kinds of abuses it has happily acquiesced in, it may well be that its time, and the time of the Watergate compromise, have passed. We are renewing our call for a new congressional Church Committee, where Congress frankly and openly discusses what changes are needed to intelligence collection, without, as happened in the recent 702 debate, being held hostage by leaders of both parties content with the status quo. As part of that public debate, members should be especially conscious of the risks posed by political surveillance, and should codify an especially high standard for NSA and any intelligence-collecting agency when conducting surveillance of people seeking or holding political office.

Beyond this, there must be meaningful accountability for NSA agents who lie to their overseers about the surveillance that is being conducted. Congress winks at being lied to about this, and should not.

Last, elected officials will not feel obliged to honor the Constitution unless there is a serious prospect of their losing office for not doing so. Watch this space as we develop strategies to address this problem.

 


Cast and Glossary

Richard Nixon

  • Richard Nixon – 37th President of the United States, from 1969-1974
    • Resigned in the face of impending impeachment after illegally surveilling the Democratic National Committee

Russell Tice

  • Russell Tice – Former intelligence analyst for the United States Air Force, Office of Naval Intelligence, Defense Intelligence Agency (DIA), and National Security Agency (NSA)
    • Revealed in 2005 that the NSA and DIA were engaged in unlawful and unconstitutional wiretaps on presidential candidates and the Intelligence Committees

Carter Page

  • Carter Page – Former campaign advisor to the Trump campaign
    • Has been a focus of the FBI’s investigation into alleged Russian collusion by the Trump campaign

Christopher Steele

  • Christopher Steele – Former British intelligence officer
    • Authored a dossier that claims Russia maintained a file of compromising information on Donald Trump

Devin Nunes

  • Devin Nunes – Republican chair of the House Intelligence Committee
    • His staff authored a memo alleging evidence of political motivation in the acquisition of a FISA surveillance warrant that targeted a Trump advisor

Chuck Grassley

  • Chuck Grassley – Republican chair of the Senate Judiciary Committee
    • Penned a letter in January that was released this week that made similar critiques of the same FISA warrant

 

  • FISA – Foreign Intelligence Surveillance Act of 1978
    • Established procedures for the physical and electronic surveillance and collection of foreign intelligence information

  • FISC – The Foreign Intelligence Surveillance Court
    • Oversees requests for surveillance warrants by federal law enforcement and intelligence agencies

  • USA PATRIOT Act – `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001’
    • Granted new executive powers regarding ‘enemy combatants’ and gave the government broad powers to obtain ‘business records’ from companies related to someone potentially involved in terrorism

  • STELLAR WIND – An illegal surveillance program begun by the Bush administration
    • Allowed the NSA to mine large databases of the communications of American citizens

  • FISA Amendments Act of 2008 – A bill retroactively legalizing STELLAR WIND
    • Gave telecommunications companies immunity for providing access to communications data

  • Section 702 – A section of the FISA Amendments Act
    • Used as legal authority for the PRISM and UPSTREAM mass surveillance programs revealed by Edward Snowden

  • NSA – National Security Administration
    • Responsible for global monitoring, collection, and processing of information and data for foreign intelligence and counterintelligence purposes

  • FBI – The domestic intelligence and security service of the United States, and its principal federal law enforcement agency
    • Has jurisdiction over violations of more than 200 categories of federal crimes

  • “About surveillance” – Any surveillance that is “about”, but not to or from, a foreign target
    • Can often very easily include communications of American citizens

  • “Backdoor searches” – Warrantless FBI searches of NSA’s foreign intelligence database
    • Performed to find information relating to domestic crimes having no relation to terrorism

You’ve probably seen the buzz around #ReleaseTheMemo on social and other media. But perhaps you found it hard to follow from a privacy advocate’s point of view.

The House Intelligence Committee in Congress agreed to share a document that allegedly described abuses of FISA surveillance, pending the president’s approval. 

Now that it’s finally been released, let’s take a look if it lived up to the hype…

The predictions:

  • It would describe political surveillance, conducted with the knowledge of President Obama, of people involved in the Trump campaign
  • It would show the bias inherent in the Mueller investigation of President Trump
  • It would vastly misrepresent the underlying intelligence reports
  • It would be unprecedented to release to the public reports of such a highly classified nature, potentially compromising national security
  • It would provide substantial evidence for the need of greater oversight of FISA surveillance

The precedents:

The realities:

  • Its main point is that the FBI failed to disclose bias by former British intelligence officer Christopher Steele against Trump as part of its application for a FISA warrant; But it was already well-known that Steele’s firm received payment from Democrats, that he was vehemently opposed to Trump’s election, and that his dossier constituted opposition research
  • It doesn’t lessen any suspicion of collaboration between the Trump campaign and Russian operatives, because that has been shown from other sources than the Steele dossier
  • Perhaps the FBI should have caveated better on the FISA application as to Steele’s motivations.
  • However, the memo doesn’t seem to substantively reveal improper political surveillance by the FBI motivated by political animus against Trump
  • From our standpoint, the memo seems to have been released as a parry in the knife fight of partisan struggles; it doesn’t reveal material relevant to Restore the Fourth’s mission
  • Suggestions of the memo compromising national security seem to be overblown; the memo could easily have been part of a public discussion prior to this, and the fact that it wasn’t suggests that our system vastly overclassifies information, and is reluctant to let the public know about things we’re in fact fully capable of understanding.
Let your senator know that nothing less than real NSA surveillance reform will do.

Perhaps you’ve been following the continuing debate in Congress on NSA surveillance, and the expiration of Section 702 of the FISA Amendments Act that makes the dragnet possible. If so, then you likely heard that Thursday the House voted down Rep. Amash’s amendment, the USA RIGHTS Act, that would have given us real mass surveillance reform. You may also know that they approved a bill, S.139, which extends Section 702 for 6 more years.

Here’s how your representatives voted on:

We still have a chance for meaningful surveillance reform this coming Tuesday when the Senate takes up S. 139. We need 41 senators to come to the aid of the Constitution by voting no on cloture for S. 139. 27 Senators voted yesterday against the Senate considering S. 139 at all, so we only need 14 more.

If S. 139 were to pass, that would not only mean six more years of the NSA spying on American citizens, but also an expansion of ‘about collection’ abilities by law enforcement.

A no vote for cloture on S. 139 will stop it from even being considered, and open the door to considering real reform. We’re urging everyone to contact their senator’s office – but especially if you are a constituent of one of the pivotal senators below.

Find Your Senator

After much Congressional debate to expand or reform NSA surveillance late last year failed to deliver a conclusion before the sunset of Section 702 of the FISA Amendments Act, it was temporarily extended to January 19th as part of a continuing resolution. to On January 5, the Rules Committee for the House of Representatives introduced S. 139, the first proposed bill since that sunset and extension.

As-is, this bill would not reform NSA surveillance programs to be in line with the Constitution. In particular, it lacks a strong warrant requirement. As such, Restore the Fourth is not supporting this bill. Currently, we are asking people to contact their representatives and urge them to support the one amendment being allowed to S. 139, which would replace it with Rep. Justin Amash‘s excellent USA Rights Act. This would:

  • End backdoor searches and require warrants
  • Close a loophole where law enforcement could engage in ‘reverse targeting’ such that they ostensibly choose a foreign target when their true interest is a US citizen that target is communicating with
  • Codify the ban on ‘about collection’
  • Restore the Privacy and Civil Liberties Oversight Board’s authority to report on foreign surveillance programs

“The USA RIGHTS Act is the best chance for real reform in a decade. Congress should grab this chance to restore our lost liberties with both hands.” -Alex Marthews, National Chair, Restore the Fourth

 

CLICK HERE TO GET CONNECTED TO YOUR CONGRESSPERSON AND SENATORS TODAY!

Summary

To the surprise of few, Congress is once again failing to function. Congress is in a pickle, and is structurally unable to return to anything resembling “regular order”; The reform or renewal of Section 702 (which allows the infamous ‘backdoor searches’ on American citizens) may be kicked down the road to the spring as a result; we should watch carefully who becomes the new Ranking Minority member of the House Judiciary Committee.

Background

The budget process in Congress is so broken that it has only “worked” (in the sense of having all 12 appropriations bills pass both houses on time) four times in the last forty years. Congress has increasingly relied not on the individual committees, but on the leaders of the House and Senate to pass “omnibus” appropriations bills, and to draft “continuing resolutions” (or CRs) to keep the government open in the interim at existing funding levels.

The strategy of threatening repeated shutdowns of the government, in the manner of Sen. Ted Cruz and the Freedom Caucus, has proved highly successful for Republicans. Not only have voters not punished them for it; voters have rewarded them by giving Republicans control of the House, the Senate and the Presidency. In response, the bureaucratic state – the officials in senior civil service positions – have tried to minimize the damage of shutdowns by defining which employees and departments are essential enough to not be shut down.

In practice, this means that the kinder and more laudable parts of the federal government – the national parks, help for the elderly and disabled, scientific grantmaking – get shut down, but the government’s mass surveillance programs and the bloated Department of Defense get to continue spending money like water for the sake of “national security.”

The 702 surveillance reform debate

702’s surveillance authorities expire as of December 31. All the time is being sucked up with arguments over whether there will be an omnibus spending bill, and if so, what compromises will be acceptable to both Democrats and the Freedom Caucus. The deadline to fund the government is this Friday. We’re expecting there to be a two-week “continuing resolution” Friday to give space for a broader “omnibus” spending bill to pass by December 22, enabling Congressmembers to head home for Christmas and New Year’s. So what will happen to 702?

Well, the intelligence community has begun to float the idea that maybe the legal authorities for mass surveillance don’t absolutely need to be renewed by December 31 after all. This is because mass surveillance depends on programmatic “certificates” issued by the FISA Court. These were last approved on an annual basis on April 26, giving the intelligence community potentially four extra months to persuade Congress to let them continue doing an end-run around constitutional protections for US persons before they really start to panic.

If that happens, it will provide more space for reformers as well, because of an absence of congressional consensus to formally renew these authorities. At the same time, it may be that the leadership of House Judiciary will change. John Conyers, the ranking minority member, has retired under a cloud of sexual harassment allegations. Rep. Jerrold Nadler is the acting ranking member, but it looks like ardent surveillance reformer Rep. Zoe Lofgren is thinking of challenging him for the position. If she were to become the ranking member, it would substantially brighten the prospects for real reform of 702 surveillance authorities.

Mass surveillance should be debated on its own, not reapproved quickly in the early hours of the morning at the last possible moment when nobody is looking. Four months may give us the time we need to get Congress to a better place on 702 mass surveillance.

Fixing The Problem

The hard truth is that the broad problem of the collapse of regular order in Congress is very unlikely to be fixed, because fixing it requires members of Congress to act against their immediate interests. If the recent tax bill had not been stampeded through with no hearings and no time for anybody to read it through, it would not have passed, and Republicans would have no victory to go home with to their voters. There are no votes in restoring regular order, and no officeholder will lose office as a result of Congress’s spectacular and increasing dysfunction. A president so passionately committed to process that he or she did not mind not having a policy legacy of any kind, could restore regular order by vetoing any bill not passed in a procedurally correct manner; but it seems unlikely that Congress can correct it on its own. The best we can manage is Senators who will bleat about how terrible the process is, but then vote for the result anyway.

Sign the petition at dontlettrumpspyonus.com!

 

Section 702 Lets Spy Agencies Snoop on Americans – Without a Warrant.

In an end run around the Constitution, spy agencies have warped Section 702 of the FISA Amendments Act into a way to unconstitutionally snoop on Americans.

The law was intended to allow intelligence agencies to monitor communications of foreign individuals outside the United States. But spy agencies like the NSA have claimed this authority allows them to scan through and collect the emails and phone calls of innocent Americans. Then, the government routinely does “backdoor searches” of this information, where they may look up information about U.S. persons, even for reasons completely unrelated to intelligence gathering.

It’s the same law the NSA claims justified the scandalous programs uncovered by Edward Snowden, like the PRISM program, which forces tech companies to turn over data on their servers, and Upstream collection, which automatically searches all internet traffic that crosses tapped lines connecting the U.S. with the rest of the world.

Flying in the face of the Fourth Amendment, the government searches this information specifically for Americans at least tens of thousands of times a year without a warrant, without evidence of a crime, and without independent oversight.

The so-called “USA Liberty Act” (H.R. 3989), which was recently introduced in the House, should be significantly improved to match the forthcoming strong surveillance reform being proposed by Senators Wyden and Paul. We’re disappointed that strong reformers in the House, such as Rep. John Conyers and Rep. Jerrold Nadler, have allowed their good name to be used to give the impression that the “USA Liberty Act” is anywhere near what is needed. Here’s why it falls so far short:

H.R.3989 doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on U.S. soil – all without a warrant. Instead, the bill okays accessing and sharing this information for foreign intelligence purposes, a loophole big enough to drive a truck through.

It fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target. Collections should be limited to communications that are “to” or “from” a target.

It doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

It doesn’t stop Section 702 information from being used in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.

It gives the NSA too many free passes. The bill adds some transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports to Congress, and only a small amount of information would trickle out to the public. And there’s no independent oversight into how President Trump and Attorney General Sessions interpret the law.

 

Spying Powers Are Already Being Abused. Under Trump Things Could Get Far Worse

Even before an authoritarian like Trump came to power, the spying powers on the books were consistently abused. The government has shown a persistent inability to follow rules that are supposed to protect Americans, as chronicled in a 2017 report by Demand Progress. Judges on the FISA Court have called the violations “a very serious Fourth Amendment issue” and complained of “an institutional ‘lack of candor’” from the spy agencies.

Surveillance powers are still being turned against activists and people of color. Muslim student associations on college campuses are infiltrated and disrupted; protesters against pipelines at Standing Rock and elsewhere are targets; and Trump’s FBI just this month was revealed to have created a new designation of “black identity extremists” to target the Black Lives Matter movement. With Trump’s clear authoritarian impulses and tendency to target vulnerable populations, Congress extending these spying powers to Trump would be catastrophic.

 

Sen. Ron Wyden and Sen. Rand Paul Get It Right with the USA RIGHTS Act

By comparison, the USA RIGHTS Act is expected to end backdoor searches, permanently ban “about” collection, and provides notice when intelligence information is used in criminal proceedings. It also is expected to contain a number of additional important provisions, including strengthening transparency around FISA court opinions, preventing solely domestic surveillance under Section 702, and much more.

 

Congress faces a deadline of December 31, when the main authority for NSA’s mass surveillance programs, Section 702 of the FISA Amendments Act of 2008, expires. This provision retroactively legalized President Bush’s illegal mass surveillance, with few limitations. Three bills have been introduced to renew and reform this authority in varying degrees.
  1. The Senate Intelligence Committee leadership’s “FISA Amendments Reauthorization Act” would renew Section 702 for eight years, explicitly codifies the use of intelligence data for domestic surveillance and to investigate domestic crimes unrelated to terrorism, and is being debated in secret.
    • RECOMMENDATION: KILL IT WITH FIRE
  2. The House Judiciary Committee leadership’s “USA Liberty Act” would improve the administration of the FISA Court but would renew Section 702 for 5.5 years without fixing the FBI backdoor searches problem, where the FBI uses searches of NSA data to get around the Fourth Amendment’s warrant requirement.
    • RECOMMENDATION: ALSO KILL WITH FIRE
  3. Now we come to the only realistic proposal on the table that would actually go a long way to fix the problems with Section 702 surveillance: Sen. Wyden’s and Sen. Paul’s just-introduced “USA RIGHTS Act.” It has also been introduced in the House by Rep. Zoe Lofgren (D-CA), Rep. Ted Poe (R-TX) and Rep. Beto O’Rourke (D-TX).

Please join our partners at Demand Progress and sign their petition to let Section 702 of the Foreign Intelligence Surveillance Act expire at the end of this year.

Restore the Fourth has been a strong critic of the secretive practices this section allows, due to the potential to allow end-runs around restrictions prohibiting targeting domestic communications of American citizens. We need to close this remaining loophole that still provides an avenue for warrantless dragnets. Let your representatives know that they need to let this clearly unconstitutional practice end.

We thank our allies at Demand Progress for providing this channel to our representatives.

Now that Sen. Tom Cotton has proposed making Section 702 surveillance permanent, it’s important to reach out to the members of the Senate Intelligence Committee who will be initially considering this. Let them know that the United States government needs to stop end-runs around our Constitutional rights and end unlawful mass surveillance once and for all. Let Section 702 sunset at the end of this year.

Reach out to these representatives by phone, email or Twitter: