Though the US Senate was forced to debate the renewal of FISA in public, it still came away voting, by a 73-23 margin, to renew the controversial law while rejecting all of the privacy amendments that had been recommended.
The rejected amendments were proposed by Senators Ron Wyden, Rand Paul, Jeff Merkley, and Patrick Leahy.
Wyden’s, which was shot down 52-43, would have forced the National Security Agency to reveal an estimate of how many Americans are affected by FISA. The NSA has argued that the enforcement of this regulation would violate the privacy of American citizens. There was a second Wyden amendment clarifying that FISA does not give the government the authority to commandeer the domestic communication of American citizens. It’s not clear if this was bundled with his other amendment.
Paul’s amendment attempted to protect the communication data of American citizens held by third-parties (e.g. emails stored in Google’s Gmail). It would have required that prosecutors provide probable cause and acquire a warrant before accessing information from third party sources. It lost lost 79-12.
The Merkley amendment would have required the Attorney General to disclose court cases in which FISA was deployed, but ultimately failed to pass with a 54-37 vote.
The Leahy amendment sought to shorten the bill’s tenure from five to three years but failed as well, 52-38.
Consider the fact that terrorists know how to use encryption, FISA is no longer about finding and stopping terrorism, if that truly was even their goal. This is about spying on Americans and have permission and the blessing of Washington to do it.
As was mentioned in the video, innocent people can get caught up in this and the government appears to be fine with that happening. The fourth amendment states that a person cannot be searched without a warrant. This includes whatever you do online, on the telephone, or purchase in person at store. This is only allowed after you are suspected of a crime. FISA, however, is worded so poorly, that it can be interpreted as allowing the monitoring of civilians for anything that the NSA could remotely tie to terrorism.
So, why should anyone care about whether the government knows what they purchase on Amazon or the local hardware store? Those in power can use that information to cause harm to a person. The information could be used to sell to a third party or employers. What if an individual works for a company that doesn’t adhere to the personal or political beliefs of an employee? That employee, who does not flaunt what they are doing, could now have that information spread around without context causing personal harm to the individual.
What if a person supports causes their family doesn’t agree with? It’s not that hard to “accidentally” release that you supported the local gay pride parade. Once the information is sold on to third parties, there is no way to control who has your information nor what they will do with it. Although these are all hypothetical situations that could happen, what happens when something more serious, such as a stalker, obtains this information?
The entire point of having the fourth amendment and the need for warrants is to prevent innocent people from getting caught up in a situation that they are not involved in and know nothing about. FISA removes these protections, which makes it harmful to every citizen in America, regardless as to whether or not they are ever personally harmed. To make matters worse, a citizen would have a difficult time taking FISA to the Supreme Court because, in such cases, you are required to show standing. In order to show standing, you must prove that your fourth amendment rights have been violated. You cannot get proof from the NSA because FISA allows them to say the proof is a matter of national security and, therefore, they cannot give you proof that your fourth amendment rights have been violated.
Even though it is thought that, once a person is identified as a US citizen, data collection must stop, that is not what is happening.
JUSTICE GINSBURG: Mr. Jaffer, could you be clear on the expanded authority under the FAA? As I understood it, it’s not like in [FISA], where a target was identified and…the court decided whether there was probable cause. Under this new statute, the Government doesn’t say who is the particular person or the particular location. So, there isn’t that check. There isn’t that check.
The individual does not need to be identified, therefore, there is no way to know if the person identified is an American or not and, thus, data collection can continue.
MR. JAFFER: That’s absolutely right, Justice Ginsburg…The whole point of the statute was to remove those tests, to remove the probable cause requirement, and to remove the facilities requirement, the requirement that the Government identify to the court the facilities to be monitored. So those are gone.
That’s why we use the phrase “dragnet surveillance.” I know the Government doesn’t accept that label, but it concedes that the statute allows what it calls categorical surveillance, which…is essentially the surveillance that the plaintiffs here are concerned about.
Instead of protecting Americans’ privacy from warrantless surveillance, the bill was changed to give retroactive immunity to telecoms and dragnet surveillance after the Bush administration’s warrantless wiretapping was made public.
Don’t count on the president to veto the renewal of FISA either. He has stated numerous times that he is in favor of such legislation. Most people knew that FISA was going to be renewed. They just hoped that they amendments would have put common sense checks and accountability into the law.