Reauthorization of FISA is Unconstitutional

The house recently voted to reauthorize the Foreign Intelligence Surveillance Act (FISA), in a bill that reviews the ability of the US government to conduct foreign surveillance on U.S. soil.

FISA was originally introduced in 1977 by Senator Ted Kennedy and signed into law by President Carter in 1978. “Historically, Presidents steadfastly claimed an inherent constitutional authority to conduct warrantless electronic surveillances for non-criminal, national security purposes. In 1972, the Supreme Court decided the case of United States v. United States District Court… the Court considered the legality of an Attorney General authorized warrantless electronic surveillance of a U.S. citizen accused of bombing a CIA building. The Court rebuffed the government’s entreaty to recognize a foreign intelligence exception to the per se warrant requirement, holding that the Fourth Amendment prohibited warrantless surveillance directed at domestic threats to U.S. national security.” During senate committee meetings, information was brought to light that showed warrantless infringements, both physical and digital of U.S. citizens, including people who opposed the president. This called for legislation necessary to dictate what was acceptable.

In 1995, FISA was expanded to allow physical searches as well as electronic ones, permitting that the target was a foreign power or an agent of a foreign power, and had intelligence. It was expanded again in 1998 to, “permit the installation and use of pen register and trap and trace devices in the investigation of international terrorism and clandestine intelligence activities…The new section includes an admonishment, however, that specifically prohibits the investigation of U.S. persons for activities that are protected by the first amendment to the U.S. Constitution.”

The origins of domestic surveillance trace their implementation back to the USA PATRIOT ACT in 2001. The full title of the bill is, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” After the September 11th attacks, the American people sought to institute legislation that would strengthen our security. USA PATRIOT ACT expanded spying beyond FISA.

While President Obama occupied the White House, the National Security Administration regularly and intentionally looked at the online and written messages of American citizens. The spying on American citizens at home has been viewed as a violation of the constitution and court orders.

All of this leads to the fact that Section 702 of FISA was set to expire on January 19th.

“Technically, the program authorized under Section 702 of the FISA Amendments Act doesn’t allow the U.S. government to collect emails, texts and other data about Americans. Sometimes, though, their data are collected anyway — as a result of communicating with foreigners who are abroad, for example.”

Those in opposition argue that this allows warrantless wire tapping of American citizens. Republican Justin Amash added an amendment which would have required the government to seek a warrant before spying on an America. The vote was 233-183 to defeat the amendment. “The key difference in USA Rights has to do with the collection and use of innocent Americans’ data, not foreign intelligence. This means the amendment cannot harm Section 702 programs if, as the government says, they are designed solely for foreign intelligence rather than domestic surveillance on Americans,”  Amash said on the House floor Thursday. “We all want the intelligence community to be able to do its job. And I have offered the USA Rights amendment to give them the tools to collect foreign intelligence, while also protecting the Fourth Amendment.”

So, in summary, the communications of Americans while in the United States are being looked at and stored, even if they are not targets of a foreign-intelligence collection. In such an age of hawk surveillance, especially promoted by the Obama administration, it is important to have government officials advocating for privacy rights and the Fourth Amendment. Such is the case with Senator Rand Paul from Kentucky, who spoke with John Dickerson about FISA, saying,

“So, we collect a massive amount of information on foreigners. But they talk to Americans. So, after you gather millions and billions of bits of information, it turns out there’s a lot of Americans in the database. What we don’t want to happen is that domestic law enforcement, policemen and FBI, are looking in a database that was collected without constitutional protections. And let’s say they decide to prosecute medical marijuana people in Colorado, which is legal in Colorado, but now the federal government is talking about changing their policy and going after them. What if they’re searching a database that was collected on foreigners to get incidental information on medical marijuana in Colorado? I have a real problem with that. So, they should have to get a warrant before they look at that. And, really, none of that information should be used for domestic crime, because it was gathered with a less-than-constitutional standard.We also have seen now people in the Department of Justice who were married to people who were doing opposition research on Trump. So, you can see how people are human, and bias could enter into this. And the history of the CIA and the FBI are not without blemish. The Hoover years are a great tarnish. We also had civil rights activists in the 60s illegally spied upon. We had Vietnam protesters illegally spied upon.”

Surveillance should come along with a warrant. Founding Father Benjamin Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The Fourth Amendment offers a clear and inviolable constitutional protection against unlawful search and seizure. In the words of libertarians everywhere, “Get a warrant!”


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