Senate Abdicates Leadership on FISA, Opening the Door to Targeting Americans with Abusive Surveillance Tactics

January 16, 2018

Secretive Spy Bill Sold as Making Us Safe, but it also has the Potential to make us Very Sorry, says Lisa Rosenberg, OTG’s Executive Director

WASHINGTON – Open the Government’s Executive Director, Lisa Rosenberg, expressed dismay with today’s vote to reauthorize and expand Section 702 of the Foreign Intelligence Surveillance Act (FISA), calling it an abdication of Senate leadership and a troubling step towards a growing surveillance state that lacks transparency, and has the ability to target citizens and upend civil liberties.    

“The Senate failed to protect the American people from a bill that poses an enormous risk to accountability, civil liberties and privacy rights,” said Open the Government Executive Director Lisa Rosenberg. “This is a bad gamble that was sold as making us safe, when it has the potential downside of making us very sorry. We have already seen disturbing glimpses of FISA 702 abuses, with warrantless surveillance that has upended the lives of Americans.”

One concerning example of how FISA could be abused: If Attorney General Jeff Sessions follows through on his recent announcement to vigorously enforce federal drug laws, he could urge the FBI to share information with the DEA that may implicate U.S. citizens in violating those laws, even in states where marijuana use is legal.

“This is not idle speculation or hyperbole,” explained OTG’s Lisa Rosenberg.  “The FBI has a documented history of counterintelligence aimed at Vietnam war organizers and civil rights activists that suggests we are right to be concerned that today’s political protesters or cannabis users may also be subject to secret, warrantless surveillance as a result of the FBI’s unfettered access to a database ostensibly designed to collect and store information only about potential foreign and domestic terrorist threats.”

The Senate bill voted on today, the FISA Amendments Reauthorization Act of 2017 (S.139), will not only extend the government’s vast surveillance powers for another 6 years, but also explicitly gives the FBI permission to sift through the data collected, including the communications of U.S. persons, without a warrant.

Under Section 702, the National Security Agency collects vast amounts of internet and telephone communications of non-Americans. However, in the process they also sweep up huge amounts of data about Americans by capturing phone calls, email exchanges, text messages, and social media postings. The government continues to shield information from the public and Congress on the impact of Section 702 spying, including the long promised estimate of the number of Americans whose communication is swept up in the surveillance programs authorized under the law. 

The FBI has broad access to search the 702 database without a warrant and to access information on Americans that can be shared with domestic law enforcement and used to prosecute defendants in criminal cases. The domestic agencies are known to use a technique known as “parallel construction” to conceal where they originally obtained the information. This means they avoid disclosing to defendants the fact that information obtained without a warrant was used during a criminal investigation, creating the very type of arbitrary search that the Fourth Amendment is meant to protect against.

We thank our privacy and civil liberties champions in the Senate who voted against this bill, and tried to introduce an amendment that would have reined in the worst abuses of 702, including shutting down that “backdoor loophole” that the FBI has been exploiting for years. 

Many organizations in the OTG coalition have been working tirelessly to push for reforms to Section 702 to ensure transparency and accountability for this expansive government surveillance authority. It’s important to stand our ground against the unrelenting erosion of our constitutional rights, and continue to enhance oversight for controversial government surveillance practices and fight for future reforms to reinstate essential Fourth Amendment protections.

For more on Section 702 from OTG and our partners, see:

VIDEO: OTG's Lisa Rosenberg on the Thom Hartmann Show to Discuss FISA 702

House Vote Leaves In Place Dangerous Spy Program that Often Targets Americans

OTG and the Charles Koch Institute (op-ed): How to Balance Civil Liberties with Safety

Electronic Frontier Foundation (online petition): Pull the Plug on Internet Spying Programs

Demand Progress (online petition): Tell your House Rep to protect your privacy online from government snooping under Section 702.

Defending Rights and Dissent (online petition): Demand Accountability at the NSA!

R Street (op-ed): Granting NSA permanent bulk surveillance authority would be a mistake

Open the Government is an inclusive, nonpartisan coalition that works to strengthen our democracy and empower the public by advancing policies that create a more open, accountable, and responsive government.  

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