After debate ended in a close cloture vote on Tuesday, the Senate has voted to pass a bill that will renew for another six years one of the NSA’s most controversial practices. The bill, known as the FISA Amendments Reauthorization Act of 2017 or S. 139, provides for an extension of the U.S. government’s practice of collecting the private communications of American citizens when they are communicating with a foreign target. The six-year renewal passed in a 65-34 vote.
Over the course of its long path toward renewal, the bill faced vocal opposition from privacy advocates. Many argue that Section 702 violates the Fourth Amendment’s provision forbidding unreasonable searches and seizures without a warrant. The bill’s supporters contend that it is “one of the U.S. government’s most important counterterrorism and counterintelligence tools” — and Congress appears to agree. Last year, in a rare win for anti-surveillance activists, the NSA announced that it would end the most controversial part of the already very controversial practice — the one that allowed it to surveil Americans who even mentioned foreign targets (this is known as “about” collection).
Unlike many controversial laws, the Section 702 debate didn’t break down neatly along party lines. The Senate’s main opposition movement was bipartisan, led by Republican Rand Paul and Democrat Ron Wyden.
While the evidence backing up Section 702’s counterterrorism success isn’t particularly sound, it’s also beside the point. The key issue is that the law allows the NSA to surveil foreign spying targets, picking up messages to and from Americans who weren’t the initial focus of an investigation in the process. (That’s the bit that would normally necessitate a warrant.)
As the Electronic Frontier Foundation explains:
Section 702 is supposed to do exactly what its name promises: collection of foreign intelligence from non-Americans located outside the United States. As the law is written, the intelligence community cannot use Section 702 programs to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.
If you’d like to read the case for Section 702, the House Intelligence Committee’s homepage lays out an argument from its Republican majority, albeit one that’s intentionally misleading about how Section 702 incidentally sweeps up domestic communications. The House Intel page also largely glosses over the core question of constitutionality.
Privacy organizations who view that question as a central one spoke out against the bill as it made its way to the president’s desk on Thursday.
Robyn Greene, policy counsel and government affairs lead at New America’s Open Technology Institute:
It’s shocking that at a time when our government is singling out communities for increased scrutiny based on their country of origin, faith, or race, the Senate would vote to expand Section 702 surveillance, and to empower the government to warrantlessly search through 702 data for Americans’ communications. Those who supported this bill did a disservice to the American people and to our democratic values.
Neema Singh Guliani, ACLU legislative counsel:
Congress abdicated its responsibility to ensure that our intelligence agencies respect the Fourth Amendment. Instead of instituting much needed reforms, lawmakers voted to give the Trump administration broad powers to spy on Americans and foreigners at home and abroad without a warrant. No president should have this power, much less one who has endorsed policies designed to unfairly target critics, immigrants, and minority communities…
The ACLU is currently challenging warrantless surveillance under Section 702 and will continue to fight this unlawful surveillance in the courts. We will use every tool at our disposal to stop the continued abuse of these spying powers.
Republican Senator Rand Paul:
I rise in opposition to the government listening to your phone calls, reading your emails, or reading your text messages without a warrant. It doesn’t mean the government will never do this, but it means they would have to ask a judge. They would have to ask a judge if they have probable cause that you have committed a crime. They would have to name you. They would have to name the information they want. It’s called the Fourth Amendment.
Oregon Senator Ron Wyden on S. 139:
It is worse than business-as-usual: It explicitly authorizes warrantless searches of law-abiding Americans, us, and allows for the collection of communications entirely among innocent Americans who reference the wrong foreigner, and gives the attorney general unchecked power to decide when the government can use what it finds against us, to pick just three of its many troubling provisions.
But I’ve been in this fight for a long time. And while today’s vote is a disappointment, the battle to protect Americans from unnecessary government spying isn’t over. Americans across the political spectrum have made clear that liberty and security are not mutually exclusive. Americans won’t stop fighting to end this abuse of power, and neither will I.
Now, only a signature from President Trump stands between American citizens and six more years of Section 702.