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The Privacy Oversight Board Should Have Listened to Senator Obama

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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July 2, 2014

In 2008, Barack Obama, then a U.S. senator, realized that if an important surveillance law were to pass, Americans’ right to privacy in their international communications would be (in the later words of the Department of Justice) “significantly diminished, if not completely eliminated.”

That law was the FISA Amendments Act — often referred to as the FAA or Section 702 — which was enacted that year and which gives the government nearly unfettered authority to monitor Americans’ international calls and emails. Today, the government’s independent Privacy and Civil Liberties Oversight Board issued a disappointingly weak report on the warrantless wiretapping of Americans’ international communications under the FAA.

There are many problems with the report. Most importantly, it fails to address whether the supposed benefits of the government’s sweeping surveillance could be achieved with a requirement that the government get a warrant before accessing Americans’ calls and emails.

The government has defended its warrantless surveillance under the FAA by arguing that its surveillance targets only foreigners overseas. But, as the privacy board recognized, one of the government’s primary uses of the statute is to collect those foreign targets’ communications with Americans.

In other words, the government uses the FAA to spy on Americans’ international communications — without a warrant and without suspicion of wrongdoing.

It does not have to be this way.

In 2008, then-Senator Obama co-sponsored an amendment to the FAA that would have prohibited the NSA from acquiring or looking at communications to or from someone in the United States without specific court approval. Though not perfect, it would have erected a reasonable yet critical barrier between the communications of law-abiding Americans and the all-seeing technology of the NSA.

Senator Obama’s amendment would not have prevented the government from wiretapping Americans’ cross-border communications, but it would have required the government to get a warrant before acquiring or reading them. The amendment ultimately failed, but it reflects a commonsense limit on the NSA’s nearly unlimited monitoring of Americans’ international calls and emails.

You would expect the privacy board to consider whether the supposed benefits of the FAA would be thwarted by such a commonsense protection for privacy. But it didn’t.

Instead, the privacy board trotted out the government’s success stories with the FAA. The short summary: When the government collects hundreds of millions of communications a year, some of those communications turn out to be useful. That’s not terribly surprising. The FBI could surely catch criminals if it had a free hand to break down every door in the country without a warrant.

The real question, though, is whether such limitless surveillance is necessary, and, in particular, whether demanding the procedural protections that the Fourth Amendment has historically required would prevent the government from doing its job. There is no reason to think that it would, and on that question both the privacy board and the government have been conspicuously silent.

Although the board’s report is disappointing, it is by no means the last word. Congress has already heard Americans’ outrage in the aftermath of the revelations of the last year and considered legislation that would rein in some of the NSA’s most abusive practices. Congress should keep the momentum going by prohibiting the NSA from collecting and searching our international calls and emails unless it has a specific order allowing it to do so.

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