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FISA Is a Direct Threat to Americans' Privacy

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“Today, the United States Congress struck a significant blow against the basic human right to read, write, learn, and associate free of government’s prying eyes,” Electronic Frontier Foundation Executive Director Cindy Cohn wrote. The Foreign Intelligence Surveillance (FISA) Reauthorization Act of 2017, which Congress passed on January 18, poses a serious threat to the privacy of our internet communications.

Congress voted to extend Section 702 of FISA, with minimal changes, for six years. It permits the National Security Agency (NSA) to collect email and texts of foreigners abroad without a warrant, and also allows spying on Americans who communicate with people outside the United States. For example, the NSA can intercept the communications of a US citizen or permanent resident who attends an international conference on human rights or marches against climate change in another country.

In 2013, whistleblower Edward Snowden revealed that the NSA was using section 702 to spy on Americans through the PRISM internet surveillance program. The government is collecting private messages, without a warrant, from US companies including Yahoo, Google, Microsoft, Facebook, Skype, AOL, Apple and YouTube. It targets foreigners who are “reasonably believed” to be outside the US, even though the surveillance occurs on US soil. However, the communications of Americans can also be incidentally intercepted.

We cannot confine our criticism for this travesty to the GOP. In a vote of 65 to 34, 18 Senate Democrats joined many of their Republican colleagues to give the Trump administration vast spying authority. Although some Democratic senators, including Ron Wyden (D-Oregon), had suggested amendments that would require a court order to gain access to the communications of US persons, others quickly got behind the reauthorization.

California Sen. Dianne Feinstein, who is running for reelection this year, provided the deciding vote that prevented any debate on increased civil liberties protections. “I would like to see more reforms in this program, and perhaps that is something those of us on the Intelligence Committee can strive for,” she said. “But I believe this is the best we are going to do at this time.”

It is no coincidence that Feinstein failed to stand up for our privacy. In 2013, when she was chair of the Senate Intelligence Committee, Feinstein defended the surveillance program while acknowledging she didn’t know how the data collected by the NSA was being utilized. At the time, journalist Glenn Greenwald noted in a tweet, “The reason there are leakers is precisely because the govt is filled with people like Dianne Feinstein who do horrendous things in secret.”

“Instead of instituting much needed reforms and safeguards, Senators supported legislation that would give spying powers to an administration that has time and time again demonstrated its disregard for civil rights and civil liberties,” the ACLU tweeted after the Senate voted to reauthorize section 702 last week.

Demand Progress, an internet activist group with 2 million members, concurred, stating, “This expanded surveillance power is particularly troubling in the hands of the Trump administration, which has made regular practice of cynical, politically-expedient and dangerous attacks on our country’s most targeted communities.”

This reauthorization bill was passed shortly before the US government shut down because Donald Trump refused to make good on his promise to protect Dreamers after ending Deferred Action for Childhood Arrivals (DACA). Following the vote to reauthorize section 702, the ACLU tweeted “No president should have this [spying] power, much less one who has endorsed policies designed to unfairly target critics, immigrants, and minority communities.”

The bill, which allows warrantless backdoor searches of the communications of Americans, requires a warrant when there is an ongoing criminal investigation. But, as the ACLU’s Neema Singh Guliani noted, “Congress has left this loophole wide open for exploitation by an administration openly hostile to critics, immigrants, Muslims, and people of color.”

Snowden maintains that Congress would not have reauthorized section 702 if it knew about alleged abuses of the program described in a secret government memo. On Friday, he tweeted, “Officials confirm there’s a secret report showing abuses of spy law Congress voted to reauthorize this week. If this memo had been known prior to the vote, FISA reauth would have failed. These abuses must be made public and @realDonaldTrump should send the bill back with a veto.”

Ironically, Republicans have issued calls to #ReleaseTheMemo, a classified memo written by Rep. Devin Nunes (R-California), which purportedly shows Barack Obama misused FISA to conduct surveillance during Trump’s presidential transition. Democrats contend the memo misstates and misconstrues the facts.

“There is one signal that will tell you if the Republican’s #ReleaseTheMemo campaign is legitimate: whether or not @RealDonaldTrump signs the FISA 702 reauth into law in the next 10 days,” Snowden tweeted. “If he doesn’t veto 702 and send it back to Congress for reform, this is nothing but politics,” he added.

Marjorie Cohn / Truthout
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Professor Cohn has authored "Cowboy Republic: Six Ways the Bush Gang Has Defied the…
Marjorie Cohn

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