Congress Just Passed a Terrible Surveillance Law. Now What?

Congress today missed a historic opportunity to reform an unconstitutional surveillance law, instead passing a version that makes it worse. Both Democrats and Republicans deserve sharp criticism for continuing to allow the NSA to engage in mass, warrantless spying.

(You can see how your member of Congress voted here and here, so they can be held accountable.)

The vote concerned Section 702 of the Foreign Intelligence Surveillance Act — a law disclosed by Edward Snowden that revealed the NSA had been spying on Americans in unprecedented ways. As a result of the expiration of this law, Congress needed to decide, for the first time since those revelations, whether to reform, reauthorize, or do away with the law altogether.

For years, the government claimed that Section 702 was primarily used to stop foreign terrorists. In 2013, we learned that was a lie. The government uses the hundreds of millions of communications collected under Section 702 — which it gets directly from tech companies or by tapping into the physical infrastructure that makes up the internet — to access the sensitive information of Americans for purposes that have nothing to do with national security.

Intelligence agencies, for example, have long exploited a loophole to conduct warrantless searches of Americans’ data collected under Section 702. The NSA conducts over 30,000 of these “backdoor” searches a year and, while the FBI refuses to report their number, we know they perform these searches routinely when investigating a crime, assessing whether they should open an investigation, or even just hunting for information about foreign affairs.

Members of both parties took a stand and joined together to try to close this “backdoor search” loophole and require the government to get a warrant when looking for information about Americans. Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.), along with Reps. Justin Amash (R-Mich.), Zoe Lofgren (D-Calif.), and Ted Poe (R-Texas) pushed until the very last minute for a warrant requirement — but their efforts were stonewalled by the intelligence agencies, the Trump White House, Republican leadership in the House and Senate, and the Democratic leader in the House.

Instead, the House pushed through a bill that fails to reform — and in some ways worsens — current law. Not to be outdone, the Senate today passed the same bill, without allowing even one minute of debate on how this bill could be improved. It now heads to the president, who is expected to sign it into law.

The new law

The bill risks codifying illegal practices that have been used to collect purely domestic communications. It will also allow warrantless backdoor searches of Americans’ information to continue largely untouched, imposing a warrant requirement only in cases of an established criminal investigation.

The FBI acknowledges this limitation is unlikely to apply in the vast majority of cases. This is because agents usually perform such searches before opening an active investigation. In addition, the bill has an exception for “foreign intelligence” searches, which could include searches designed simply to find information about foreign affairs.

In other words, Congress has left this loophole wide open for exploitation by an administration openly hostile to critics, immigrants, Muslims, and people of color. The administration can too easily use this as a tool to further their discriminatory and unconstitutional policies.

But there is a glimmer of light.

The last few weeks have demonstrated that bipartisan efforts to reform our surveillance laws continue on an arc of progress. With only two more votes, reformers could have halted this bill from advancing and forced a floor debate over badly needed improvements. And an effort to pass the most comprehensive Section 702 reform bill introduced in Congress garnered the support of over 180 members in the House. With actual debate, real reform provisions likely would have passed. Such support for reform would have been unthinkable seven years ago.

Next steps for surveillance reform

The expiration was a lost opportunity for Section 702 reform. But the debate over the law is far from over.

Next year, Congress will again debate expiring surveillance provisions in the USA Patriot Act, providing a renewed opportunity to again force reexamination of our surveillance laws. But Congress doesn’t have to wait for an expiration to act. And reformers can try to force reform through other avenues, as they’ve done before.

The ACLU is also carrying on the fight against Section 702 in the courts. Our challenge to the NSA’s mass searching of internet communications under Section 702 continues to move forward. At the same time, we are representing Xiaoxing Xi, a Chinese-American physics professor who is challenging his baseless prosecution by the government and the unconstitutional spying that led to it. And finally, a federal appeals court is poised to consider the constitutionality of Section 702 surveillance in a criminal case that demonstrates why this warrantless spying violates the Fourth Amendment and Americans’ privacy rights. (Our brief in the case is here.) Rulings in any of these cases addressing the constitutionality of Section 702 could require Congress to revisit the law.

The pressure to reform our laws could also come from across the Atlantic. It is likely that the Privacy Shield agreement between the U.S. and the European Union — which governs transatlantic data transfers and is relied upon by thousands of U.S. businesses to service European customers and perform day-to-day activities — will be challenged in European courts. Those courts have previously struck down similar agreements over concerns that they did not adequately consider whether U.S. surveillance laws comported with EU standards. If the Privacy Shield is similarly struck down, surveillance reform may quickly become an economic imperative.

In the meantime, Congress can and should exercise its oversight authority. Members can demand that the intelligence agencies deliver on broken promises to provide information about how the law affects Americans. And, they can be vigilant to ensure that additional abuses of the law are brought to light.

No one said surveillance reform was going to be easy. But it’s certainly not dead.

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Anonymous

Requiring a judicial warrant doesn't harm crime fighting or harm national security in any way. The opposite is true.

Using a "needle in the haystack" metaphor: warrantless surveillance adds more hay (or suspects) to the haystack making it far harder to find the real bad guys.

By focusing time, taxpayer money and resources on cases based on actual "probable cause" or evidence of a past crime - authorities are investigating people with a real likelihood of being criminals. Cops and officials trolling Facebook and social media trying to police legal First Amendment exercises is the dumbest crime fighting tactic there is. This type of unconstitutional "fishing expedition" starts with a "haystack" where 99.9% of people there is no probable cause of a past crime (as the Fourth Amendmend mandates).

What we are seeing since Bush's illegal "Preemption Policy" is bureaucratic mission-creep.

S Vallone

Whatever happened to privacy??? I still see Cameras on light poles hidden, and on small traffic lights in Columbus,Upper Arlington, and Grandview Heights...and you just can't get away, with driving down the street, with being viewed from private businesses-on sidewalks also...and forget about going for a walk and then being on someone elses cell phone...and then posted to a fake Fb...-Why????

Why does the U.S Government not recognize Privacy anymore??? I think E.U has better privacy laws then the U.S at this point-especially with Banks...Americans are even barred from Opening a Swiss Account because of our Government and the way it acts... At least E.U recognizes privacy more...-(excluding the U.K)...Any help???

Anonymous

Reloquent,
You are perfectly right. The war on terrorism is
a war on the American people.

mar

What has the ACLU done for the American people (we fund your org) regarding this surveillance issue. In 2012, Obama admins overruled the US Dept of Homeland Security and implemented new guidelines, but I didn't hear anything about that from the UCLA, and you didn't do anything, What do you actually do? You don't solve anything, but waste taxpayer money. Also, the SWAMP is still in Washington, as you can see in the FBI, etc. and THANK GOD FOR TRUMP. We stand with GOD and President Trump, not the aclu.

Anonymous

mar: "You don't solve anything, but waste taxpayer money" AFAIK, the ACLU doesn't receive taxpayer money..

Anonymous

I e-mailed the ACLU message to the White House. Am I in for it?

truely nolan

Yes, this is absolutely true. I am currently under hostile FBI surveillance. I have no criminal background and have done nothing wrong. The FBI and intelligence forces in the U.S. are completely out of control.

Anonymous

There is this guy from NTEU union said that he loves me and he wants to know more about me. The next thing I know that I am under government surveillance. It's very painful. I went to police station to check for my background. I don't have any criminal background, but they are still following me even when I travel outside the US. Is there a good lawyer?

Richard

You think our government gives a shit about what we think. As stated before we have lost control of our self serving politicians. They are pushing us into a corner. What happens then?? What has happened in the past, think about it.

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