by Ralph Scharnau
Section 702 of the Foreign Intelligence Surveillance Act (FISA), a warrantless surveillance law, seeks to track and foil foreign terrorists. This enables the National Security Agency (NSA), the Federal Bureau of Investigation (FBI), and other US bodies to gather and/or search private communications without a warrant. The law will expire on December 31, 2017, unless Congress acts to renew or revise it.
The law authorizes warrantless telephone and internet monitoring programs. The massive dragnet potentially includes a vast number of calls, emails, chats, texts, and other conversations. The information obtained might include family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges.
This widespread spying without safeguards against abuse violates the fundamental rights to speech and privacy guaranteed by the First and Fourth Amendments to the Constitution. It also sweeps up the electronic data of innocent Americans who may be communicating with foreign nationals, even when those foreigners aren’t suspected of terrorist activity.
The activities conducted under Section 702, moreover, lack transparency and oversight. Intelligence officials refuse to tell Congress how many and how often unknowing Americans have had their personal data collected. This operational secrecy of FISA activities opens the door for violations of constitutional, civil, and human rights. It can undercut privacy and dignity while having a chilling effect on freedom of expression, religion, association, and thought.
Human Rights Watch warns that Americans exercising their legitimate free-expression rights are also at risk of discriminatory or arbitrary monitoring. The FBI has identified some of those associated with the Black Lives Matter movement as black identity extremists. This casts those objecting to racism and injustice as extremists and can lead to racial profiling. Besides, recent reports of attacks on police officers come overwhelmingly from those in the white community, not blacks. .
The Trump administration wants Section 702 renewed without alteration. But reform of 702 requires fortifying civil liberties without compromising the nation’s ability to surveil foreign threats. This can be done by making surveillance of American communities dependent upon getting a warrant from a FISA court
A major debate over electronic spying that defies usual partisanship is underway in Congress. The debate centers on NSA’s incidental eavesdropping on Americans via its warrantless surveillance program, which spies on foreigners abroad whose communications pass through American phone and internet services.
A bipartisan coalition of privacy-minded lawmakers has circulated draft legislation that would impose new limits on the government’s ability to use incidentally gathered information about Americans in contact with foreign targets. Wyoming Democrat Ron Wyden, a member of the Senate Intelligence Committee, promises to put a hold on any bill that allows the government to continue warrantless domestic spying. Representative Ted Poe, a Texas Republican, warned other lawmakers that not requiring a warrant betrays privacy in the name of national security.
In its current form, Section 702 fails to comply with the government’s obligations under the Constitution and international law. Furthermore, the Section’s sweeping nature results in the collection of information from individuals who pose no threat to national security. A beginning reform, as Senator Wyden and Representative Poe advocate, would prohibit the government from searching through information obtained under Section 702 without a warrant.
Congress explicitly intended FISA to strike a balance between the legitimate requirements of national security and the need to protect against presidential abuses and safeguard personal privacy. Unchecked NSA monitoring violates our constitutional rights to privacy and free speech. And excessive government secrecy menaces human rights and the rule of law.