The Sky Did Not Fall

March 15 marks three years since, amid the shrill protests of the intelligence community, Congress allowed key sections of the mass-surveillance-enabling PATRIOT Act to lapse.

This week, we’re again hearing shrill cries of the intelligence community and their lackeys on the Hill, declaring that if Congress allows mass-surveillance-enabling Section 702 of the FISA Amendments Act to lapse – or even if (horrors of horrors) Congress requires the FBI to get a warrant to dip into the NSA’s ocean of data on US persons – the United States will become blind and deaf to Extremely Serious Threats.

“Fears of terrorism”, as defenders of mass surveillance acknowledge, “do not drive votes as they once did.” So, the new Extremely Serious Threat to the Homeland being presented to Congress is an unholy smörgåsbord of “China, Russia, nefarious cyber actors, terrorists, and those who seek to harm our critical infrastructure.” “Dare to sunset, or even reform 702 surveillance,” the intelligence community is effectively saying to Congress, “and once again, Americans’ blood will be on your hands.

Intelligence professionals have a lot of trouble seeing the forest for the trees here, or imagining why many members of Congress are even interested in changes that would put the monstrous Moloch of the surveillance state on a healthier diet. But it’s not hard to figure out. Rep. Darin LaHood made headlines this week because he declared that he was the Member whom the FBI has most lately improperly spied upon. An FBI that spies on a senior member of the Committee designated with FBI oversight, is an FBI that really obviously needs reining in; and it’s probably been doing this kind of thing for quite some time.

The U. S. government derives its whole legitimacy from the Constitution. Lawmakers swear to uphold the Constitution, not the government. We have freedom of speech and religion and protection from unreasonable searches and seizures, not because they’re convenient for the government, but because they protect Officer Angwang, you, and me from the government – including from the intelligence community itself.

You can be a loyal American, and sincerely dislike the wall-to-wall surveillance Americans endure, without being a “MAGA Trumpist” or a member of the “Greenwald Left.”

Similarly, it seems like the intelligence community presumes that if an ordinary American comes to their attention, they must obviously be a bad guy. Take, for example, Officer Baimadajie Angwang of the NYPD, an ethnic Tibetan, U. S. citizen and former Marine who was harassed for years, accused of being a spy for China on the basis of NSA-derived information, dismissed and imprisoned for five months, before charges were quietly dropped. Or take the testimony of Terry Albury, who toiled for years to get the FBI actually to close endless, free-floating investigations of Muslims, untethered to suspicion of any particular crime.

In the end, what the intelligence community fails to realize is that people are more than what their digital trail says they are. We are complicated. We are blessed. And digital systems, by their nature, flatten and simplify us, pinning us to a digital classification like a butterfly on a pin.

The U. S. government’s surveillance practices, even if theoretically targeted at the sneering villains Over There, sweep up millions of Americans’ communications “for foreign intelligence purposes,” and then allow the FBI to dip into that database millions of times in a single year for any domestic law enforcement purpose it pleases, without a warrant.

The government has lied endlessly about this, first pretending they weren’t doing it at all, then pretending that Congress knew, then pretending that the process was closely overseen, then pretending that they had no capacity to assess how many U. S. persons were affected, and now, claiming that “fewer than 204,090” FBI backdoor searches of U. S. person data in NSA databases in 2022, each representing a separate Fourth Amendment violation, is really not all that many, considering the Extremely Serious Threats we face.

Back in 2007-8, with the FISA Amendments Act, including Section 702, Congress retroactively legalized a whole heap of illegal surveillance the Bush administration had done. Five years after that, Edward Snowden came out of the NSA with proof that the NSA was still lying to Congress about the massive scope of its surveillance. Since then, the long train of abuses has continued.

The secret court set up to review surveillance programs – the FISC – has been busily practicing a jurisprudence of the furrowed brow. Every year, they conscientiously note an array of abuses. At the outer limit, they tactfully recommend, not punishments of agents violating people’s rights, but a gentle correction of intelligence agency procedures going forward. Every year, they nevertheless recertify the constitutionality of the intelligence community’s surveillance programs, because to do otherwise would be Judicial Activism.

Just last month, the Supreme Court closed the courthouse door on the last major case litigating whether you and I could hold the intelligence agencies to account for violating our privacy. Apparently, whether the government is invading Americans’ privacy is too much of a “state secret”- even though the press has reported on it for years – for the courts to rule on it. There’s no help coming from there.

And Joe Biden – co-author of the PATRIOT Act Joe Biden – the same Joe Biden who personally hounded foreign governments to deny Snowden asylum while Vice-President – is really unlikely to help either.

So it really is up to Congress to fix this. On both the Democratic and Republican side, the leaders in this new Congress are more receptive than ever before to surveillance reform, and the track record of abuses is also longer than ever before. They can even fix it by doing nothing, letting Section 702 sunset at the end of this year, and then replacing it with a constitutional system. They can, if they wish to work together in a bipartisan and intelligent way, reform the government’s surveillance powers significantly, so that the intelligence community can’t routinely steamroller over our Fourth Amendment protections.

We propose the following principles for reform:

  1. Any surveillance of Americans should be undertaken only pursuant to a statute, duly enacted by the people’s representatives in Congress.
  2. Any surveillance of Americans should be undertaken only pursuant to a probable cause judicial warrant.
  3. Any surveillance of Americans should be subject to adequate mechanisms—in both Congress and the judiciary—to ensure accountability for compliance with governing law.
  4. “Surveillance” should be defined broadly, to include (among other things) data purchases, searches of databases compiled by governments, and searches of private records held by third parties.

Members of Congress should remember the abuses, remember their oath, and reject the intelligence community’s routinely untruthful claims. The sky didn’t fall when Section 215 of the PATRIOT Act lapsed. The sky won’t fall this time either.