In a bipartisan manner, Congress recently passed the FISA Reauthorization Act of 2017. On January 19th, President Trump signed this bill into law. The new law extends the controversial Section 702 program that allows the NSA to conduct warrantless surveillance of non-US citizens or residents.
This program clearly serves the interests of our intelligence agencies. However, the private information of millions of Americans is also collected in this program. And the private information of anyone in the US who communicates with someone outside of the country could potentially be stored in this massive database.
Significant Privacy Issues
How expansive is this program? The Washington Post reviewed a sample of communications from the Edward Snowden leaks and found that 9 out of 10 people in the database were not surveillance targets. Nearly half of these people were American citizens or residents, and their private information was swept up in this net.
This isn’t just a matter of preserving privacy. Once information enters this program, all conventional constitutional law goes by the wayside. The FBI has access to this program to do “backdoor searches” for any crime without a warrant. That information can be passed along to whichever law enforcement agencies the FBI deems necessary. Furthermore, this isn’t a minor program that applies to a few people. There were an estimated 106,469 targets in 2016.
Even former CIA and NSA director Michael Hayden has admitted that the FBI’s access to this information without a warrant is a “no-fooling legitimate issue.” Hence, a small but bipartisan group within Congress supported the USA RIGHTS Act that would have maintained national security intelligence without sacrificing Americans’ basic freedoms. The bill would have required a warrant for FBI access to US citizens’ communications.
A group of five Senators, notably Ron Wyden (D-OR) and Rand Paul (R-KY), filibustered the FISA Reauthorization Act of 2017 in hopes of redirecting support for the USA Rights Act. Unfortunately, their effort was nullified when Sen. Claire McCaskill (D-MO) cast the deciding vote that ended the filibuster. She was one of 18 Democrats who voted in kind.
Bear in mind, the Democrats have consistently criticized President Trump’s authoritarian ways, yet their support for this bill contradicted all of their pleas for responsible leadership. Moreover, this filibuster was nullified on January 16th, the day after the birthday of Martin Luther King, one of the foremost victims of federal government persecution.
No Reform, Just Expansion
Nonetheless, Congress passed this bill under the guise that reforms in favor of civil liberties had been made. The new law requires the FBI to obtain a warrant to search the 702 database for information about American citizens. However, there’s a catch. The FBI only needs to get a warrant if that person is already under criminal investigation. Consequently, this “reform” actually incentivizes the FBI to conduct more arbitrary searches and provides criminals with better protections.
Some legal experts, such as Robyn Greene of the Open Technology Institute at New America, contest that the new law has also essentially reauthorized and expanded a practice that the NSA agreed to discontinue. This involves the collection of “about” data in which your personal communications can be swept up by the NSA for mentioning a person who is a target of surveillance. This decision poses a particular danger to the media or political activists.
Furthermore, there were no reforms of a little-known system called “parallel construction.” As mentioned earlier, the information in the NSA’s database can be used by federal law enforcement agencies, particularly the DEA, for domestic operations. However, the government doesn’t have to disclose in a court of law that the investigation was initiated by information from the NSA. Considering that prosecutors can omit the origin of the investigation, a former DEA agent, Finn Selander, accurately criticized this practice by analogizing it as “money laundering” for evidence.
There are many disturbing revelations about the FISA Reauthorization Act. Suffice it to say, Congress provided a tremendous amount of latitude to an agency that has shown no determination for reform in the wake of high-profile scandals. As a matter of fact, on the same day that President Trump signed the FISA Reauthorization Act, Politico reported that the NSA destroyed info related to Bush’s warrantless wiretaps. That “mistake” was quite convenient because that information was to be used as evidence in pending lawsuits against the government.
A pair of Trump tweets illustrated some of the hypocrisy on this issue. At 4:33 in the morning on January 11th, Trump’s tweet asserted that the FISA Act “may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump campaign by the previous administration and others?” Nearly two hours later, he flipped his stance tweeting, “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”
As easy as it is to poke fun at Trump on this issue, his views related to authoritarian government surveillance aren’t much different from most Americans. Polls show that public opinion on NSA spying shifts back and forth depending upon who is in the White House. In other words, liberal or conservative voters generally aren’t opposed to mass surveillance as long as their party is in power.
Both sides can point to a list, which is far too lengthy for this space, of federal government abuses for political purposes. However, the two major parties have continued raising the stakes by providing more power to the federal government with few meaningful reforms.
No Protection of Whistleblowers
The FISA Reauthorization Act received strong support from the Republicans despite the backdrop of the “Nunes memo” alleging misconduct towards President Trump. Over the last year, conservatives have heard from NSA whistleblower William Binney who is now a frequent guest on Fox News. Binney was persona non grata during the Bush administration, but now his revelations indirectly help build a narrative that the Deep State is suppressing Trump.
Binney and his fellow NSA whistleblowers felt the wrath of the FBI for merely speaking truth to power. Ironically, the disturbing information from intelligence whistleblowers led to the creation of the 702 program, which was approved by Congress in 2008, in part, to rein in the warrantless wiretaps by the Bush administration.
In an environment where there is no real government accountability, it elevates the importance of whistleblower protection. Nonetheless, numerous government whistleblowers have faced retaliation for merely performing their civic duty. The latest victim being Dan Meyer, the director of the Intelligence Community Whistleblowing and Source Protection program.
Meyer was escorted out of the building in December of last year, and his office was marked with police tape. He has been placed on leave and faces termination in an act of clear retribution. For several years, Meyers has worked as an advocate for whistleblowers in the Defense Department.
This is a familiar situation for Meyer personally as he has acted as a whistleblower in the past. He once received a settlement