Are politicians in Washington, D.C. finally working for the interests of Americans who elected them? There are some members of Congress who are. Senators Ron Wyden (D-OR) and Rand Paul (R-KY) have submitted the “USA RIGHTS Act” to limit warrantless wiretapping allowed by Section 702 of the Foreign Intelligence Surveillance Act (FISA). Current law allowed unlimited warrantless searches of communications of American suspected of contacting a person overseas. The legislation sponsored by Sens. Wyden and Paul will strongly protect 4th Amendment rights of Americans and strike a balance between security and privacy rights.
The best way to address the violation of our rights under the current FISA law is to enact this legislation. Sen. Wyden says that “the government wants Congress to extend 702 spying but won’t say what powers it provides.” Sen. Paul argues, “Intelligence agency leaders are waging an all-out public relations campaign in support of their favored surveillance authority, Section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires at the end of this year. But at the same time they demand Congress renew this far-reaching spying power, officials are refusing to tell Americans how the government interprets this authority to sweep up and search their phone calls, emails, and other communications, all without a warrant.”
The USA RIGHTS Act would end back door search allowed under current law, where government can conduct unlimited, warrantless searches via the data collected under section 702 from private communications between Americans. Instead a warrant would be required for those searches. While there are no checks under current law to prevent “reverse targeting” of Americans communicating with foreign agents, the proposed legislation will require a warrant on targeting foreigners to collect the communications of Americans.
Because section 702 is intended to collection foreign communications, the FISA reform bill makes it clear that it does not authorize the collection of communications known to be entirely domestic. Additionally, it permanently bans the government from obtaining communications that are not to or from a foreign agent, but merely about a foreign target and can be entirely among Americans.
The Privacy and Civil Liberties Oversight Board (PCLOB) will get stronger authorization by allowing it review all foreign intelligence surveillance programs and not just those targeting terrorism, and also allowing outside plaintiffs to challenge the constitutionality of FISA authority.
The USA RIGHTS Act improves transparency by allowing for the release of key FISC opinions and data allowing for better public understanding of Section 702. The entire bill will require congressional reauthorization in four years.
The strongest defenders of the Bill of Rights in Congress believe that FISA law needs to be reformed and see passing the Wyden-Paul bill as the way to do that. Another bill reauthorizing FISA, introduced by Senators Tom Cotton (R-AR) and Lindsey Graham (R-SC), contains no such reforms as those included in this legislation. Continued violations of the 4th Amendment via unlimited warrantless searches, that have nothing to do with national security, will continue if Section 702 of the FISA law is reauthorized via passed of the Cotton-Graham bill.
When Section 702 expires on December 31 of this year, the privacy rights of Americans will have far stronger protections if the Wyden-Paul bill is passed by Congress. This is a great opportunity for members of Congress to do the real work of truly representing the interests of Americans who elected them, by passing this legislation to reform the FISA process in a way that protect both our security and our privacy rights.