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 CONGRESS JUST PASSED A TERRIBLE SURVEILLANCE LAW. NOW WHAT?  
[https://portside.org/2018-01-20/congress-just-passed-terrible-surveillance-law-now-what]


 

 Neema Singh Guliani 
 January 19, 2018
Common Dreams
[https://www.commondreams.org/views/2018/01/19/congress-just-passed-terrible-surveillance-law-now-what]


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 _ We need to stop NSA in engaging in mass, warrantless spying. _ 

 White House / Wikimedia Creative Commons, "Members can demand that
the intelligence agencies deliver on broken promises to provide
information about how the law affects Americans." 

 

Yesterday Congress 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
[https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00011#position]
and here [http://clerk.house.gov/evs/2018/roll016.xml], 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
[https://www.govtrack.us/congress/votes/115-2018/h14?utm_campaign=govtrack_feed&utm_source=govtrack/feed&utm_medium=rss]
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
[https://www.aclu.org/blog/national-security/house-tees-surveillance-reform-senate]
before.

The ACLU is also carrying on the fight against Section 702 in the
courts. Our challenge
[https://www.aclu.org/cases/wikimedia-v-nsa-challenge-upstream-surveillance-under-fisa-amendments-act]
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
[https://www.aclu.org/blog/privacy-technology/surveillance-technologies/chilling-surveillance-and-wrongful-arrest-chinese]
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
[https://www.reuters.com/article/us-usa-security-surveillance/challenge-to-u-s-warrantless-surveillance-on-tap-after-guilty-plea-idUSKBN0P62NP20150626]
that demonstrates why this warrantless spying violates the Fourth
Amendment and Americans’ privacy rights. (Our brief in the case is
here
[https://www.aclu.org/legal-document/us-v-hasbajrami-brief-amici-curiae-aclu-and-eff-support-defendant-appellant-and].)
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
[https://www.bna.com/eu-closely-watching-n73014474065/] 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
[https://www.aclu.org/letter/aclu-letter-european-commission-annual-review-eu-us-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
[https://www.reuters.com/article/us-usa-intelligence/nsa-backtracks-on-sharing-number-of-americans-caught-in-warrant-less-spying-idUSKBN19031B]
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.

Neema Singh Guliani works in the ACLU's Washington Legislative Office.


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