Congress is getting ready to debate reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire at the end of the year. Liberty-minded voters and lawmakers should support reform of this provision, to insure that the federal government's power is kept in check.
Both the Republican and Democratic parties have abused warrantless surveillance authorities when in power, to sweep up communications of American citizens in a way that violates the Fourth Amendment to the U.S. Constitution.
Section 702 passed in 2008, when Democrats controlled both the House and the Senate. The original bill was supported strongly by former Speaker Nancy Pelosi. With Republicans in control of Congress and the White House, they now have the power to reform the same surveillance overreach they have previously criticized.
The fight has become an internal struggle between the old establishment guard of the Republican Party and newer, more liberty-minded members who are concerned about privacy and government overreach. The future of the Republican Party includes support for privacy and Fourth Amendment rights. Therefore, the leadership in the House, where this bill is expected to start, should be responsive to the members who are leaders of the privacy movement. Rep. Bob Goodlatte, R-Va., has voiced support for Section 702 reform, and hopefully will lead the charge to bring together divergent elements of the Republican Party, to support a common sense compromise on the bill.
The Bush administration engaged in widespread warrantless wiretapping without any congressional authorization. Likewise, the Obama adminisration used Section 702 to engage in similarly unconstitutional practices.
The provision has been used in a way that violates the Constitution and does not enhance national security. A Washington Post analyzed documents released by Edward Snowden and reported on July 5, 2014 that, "Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency" under Section 702. The Washington Post reviewed 160,000 intercepted email and instant messaging conversations and reported on widespread monitoring of Americans' data that should have required a warrant based on probable cause for the government to collect. This massive data collection is a problem unto itself because the government amasses a giant database of information that they keep.
These abuses are evidence enough that Section 702 needs to be reformed or allowed to expire.
Congress must insist on closing the so-called backdoor search loophole. This loophole allows the government to target Americans under Section 702, under the pretense that they are really targeting foreign nationals. The FBI routinely performs these types of searches, even in cases where they lack the evidence necessary even to open a formal investigation.
There are currently no prohibitions on the use of this information in prosecutions against Americans for alleged offenses unrelated to terrorism. That Section 702 can be used to wiretap Americans without a warrant, and in investigations that have nothing to do with terrorism, demonstrates the amount of mission creep that this anti-terrorism provision has permitted.
Another critical reform that should be imposed on the program would be to limit the scope of Section 702 to only allow targets to be foreign powers or agents, and exclude individuals who are not associated with terrorism and may merely be businessmen or journalists. Furthermore, the upstream surveillance program that has been used to search emails and text messaging on a massive scale should be ended.
Real transparency and oversight of FISA programs needs to be part of any compromise, and any retained data needs to be purged on a regular basis. Finally, private citizens need to have a way to challenge unconstitutional surveillance in court if they believe their rights have been violated.
The law has been implemented in a way that violates the Bill of Rights. This should lead constitutional conservatives in the Senate to filibuster any reauthorization that does not include substantial reform.
Brian Darling is former Senior Communications Director and Counsel for Sen. Rand Paul (R-Ky.). He can be followed on Twitter: @BrianHDarling.
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