With the help of every Iowan except for Republican Representative Rod Blum (IA-01), Congress has reauthorized for six years the National Security Agency’s authority to collect e-mails, instant messages, and other communications on U.S. soil.
Section 702 of the Foreign Intelligence Surveillance Amendments Act was “intended to allow intelligence officials to electronically surveil non-US ‘persons reasonably believe[d] to be located outside the United States’ without a warrant,” Louise Matsakis reported for Wired.
The NSA collects millions of video chats, instant messages, and emails under Section 702 by compelling companies like Facebook, AT&T, and Google to hand them over.
The law also allows the FBI to search through the NSA’s database without a warrant, constituting what critics like Democratic Senator Ron Wyden call a backdoor to the Fourth Amendment. The law technically only authorizes the collection of communications belonging to foreign individuals, but citizens and permanent residents easily get swept into the dragnet. For example, Americans who communicate with foreigners may be included.
The NSA began such surveillance in secret soon after the 9/11 attacks in 2001. Congress legalized the program in 2008 and reauthorized it for five years in 2012. As Karoun Demirjian and Josh Dawsey explained in the Washington Post,
The intelligence community considers the program — known as Section 702, named for its place within the Foreign Intelligence Surveillance Amendments Act that established it in 2008 — to be its key national security surveillance tool. But privacy advocates oppose the law, arguing that there are not enough limits to federal law enforcement agencies’ ability to scour the communications of Americans in touch with foreign targets.
the amendment would ban the practice whereby officials at the N.S.A., the F.B.I. and other security agencies, without a warrant, search for and read private messages of Americans that the government incidentally swept up under the 702 program. Instead, except in emergencies, officials would need to obtain a court order to query the repository for an American’s information.
The amendment is chiefly sponsored by Representative Justin Amash, Republican of Michigan, and Representative Zoe Lofgren, Democrat of California. It would substitute in the text of another bill, dubbed the USA Rights Act, which would extend Section 702 by only four years.
However, only 183 House members (58 Republicans and 125 Democrats) voted for the Amash-Lofgren amendment on January 11, while 233 representatives (178 Republicans and 55 Democrats) rejected it. Blum was the amendment’s only supporter in the Iowa delegation; Democrat Dave Loebsack (IA-02) joined Republicans David Young (IA-03) and Steve King (IA-04) to oppose requiring a warrant for surveillance of communications by U.S. citizens.
The House then approved the FISA extension by 256 votes to 164. Blum was among 45 Republicans who opposed the bill, while Young and King were among 191 Republicans who voted for it. Loebsack provided one of 65 Democratic yes votes.
As a first-termer in 2008, Loebsack voted against warrantless surveillance (roll call). But when FISA reauthorization came up in 2012, he supported the government’s position, leaving fellow Democrat Bruce Braley (IA-01) as the only Iowan in the U.S. House to oppose that bill (roll call). I have not seen any public statement from Loebsack on his most recent FISA votes and am seeking comment from his staff.
Blum released this statement on January 11.
Rep. Blum Votes Against Reauthorization of Government Surveillance Programs
Consistent with his record to protect the Fourth Amendment rights of his constituents, Rep. Rod Blum voted against reauthorizing the Foreign Intelligence Surveillance Act (FISA). As the name suggests, the program was initially enacted with the focus of gathering intelligence on foreign actors but was expanded by the USA Patriot Act in 2001 to include surveillance of U.S. citizens.
Rep. Blum commented on his vote, “I respect the work of our intelligence community and law enforcement agencies to protect U.S. citizens from harm within the country and overseas, but I cannot support flagrant violations of the Fourth Amendment. I co-sponsored Congressman Amash’s proposed Amendment because I continue to be concerned about unauthorized government intrusion in private communications between U.S. citizens, and I believe this amendment would have addressed these underlying issues such as ensuring proper warrants are in place before obtaining information on U.S. citizens. Unfortunately, this amendment was not included in the final bill, and that is why I voted NO on continuing these unconstitutional surveillance practices.”
In 2015, Congressman Blum voted against reauthorizing and expanding these authorities in the USA Freedom Act. In 2016 and 2017, Congressman Blum co-sponsored and voted for the Email Privacy Act, further protecting the Fourth Amendment rights of U.S. citizens.
Groups in favor of Congressman Blum’s position include Indivisible, FreedomWorks, the Sunlight Foundation, ACLU, NAACP, TechFreedom, Demand Progress, Electronic Frontier Foundation, and The Cato Institute.
The full text of the bill can be found here.
To his credit, Blum has been consistent on this issue. His concerns are justified.
In his statement, King touted his vote to renew what he called a “Key Foreign Intelligence Collection Tool.”
FISA legislation’s Section 702 changes strike important balance between Civil Liberties and National Security
Washington, D.C.- Congressman Steve King, releases the following video of remarks he made on the House floor this morning in support of S. 139, the FISA Amendments Reauthorization Act of 2017. The bill makes important changes to Section 702 of the Foreign Intelligence Surveillance Act in order to enhance civil liberty protections for American citizens while also preserving the usefulness of foreign intelligence collected by this important national security tool. King voted in favor of the legislation, which passed the House on a bipartisan 256-164 vote.
To view the video click this link.
“I rise in support of the 702 re-authorization. It is critical to our national security. You would see the color drain out of the faces of all of our security personnel, the entire national security community, if we lost the ability and went dark on 702. We’ve got to follow through in this Congress. We’ve got to provide the flexibility for them to use the tools that we have available to us.
We set up procedures that approve this annually under the FISA courts. We got a probable cause requirement for any criminal investigation that protects U.S. persons. We don’t need to be protecting anything but U.S. persons when it comes to this.
The gentlelady spoke of civil liberties and I stand in defense of those civil liberties as well and in defense of national security. We have an IG report that’s written into this bill. But I would remind the people that are concerned about this focus on these civil liberties that Google and Facebook and Verizon and AT&T hold more data than the U.S. government has. That is where the real information is. And if they are concerned about that they should raise that issue. Meanwhile, I will oppose the Amash amendment and support the re-authorization of 702. Our people, U.S. persons, deserve that protection.”
Among the changes made to Section 702 referenced by King are the inclusion of language adding a “probable cause based order requirement” for the FBI to view Section 702 content, and a requirement for the Department of Justice Inspector General to review FBI Section 702 practices. These changes are viewed as important privacy enhancements for American citizens.
The probable cause based order requirement offers Americans less protection than King implies, as Matsakis showed in her piece for Wired.
“Not only does the bill say you have our blessing to collect communications that contain a target’s email address, it also endorses collecting communications that merely contain a reference to the target,” says Elizabeth Goitein, co-director of the Liberty and National Security program at New York University School of Law’s Brennan Center for Justice. “So literally if you and I sent an email to each other that had the word ISIS in it, if you and I send an email that talks about ISIS, under this bill the government is authorized to collect it.” (Assuming ISIS is a group that the NSA is specifically targeting.)
The bill does impose a warrant requirement upon the FBI, but the way it’s written appears to weaken privacy protections rather than strengthen them, says Goitein. Under the legislation, FBI agents need a warrant to search the Section 702 database when a criminal investigation has already been opened, but not when national security is involved. That means the FBI can query the database on nothing more than a tip. “It incentivizes doing searches earlier and earlier, when it’s less and less justified,” says Goitein.
Libertarian-minded Republican Rand Paul promised to filibuster the FISA bill in the Senate. He and his allies nearly blocked a cloture motion on January 16, but GOP leaders managed 60 votes in favor of proceeding, with the help of eighteen Senate Democrats.
Grassley supported warrantless surveillance in 2008 and voted to reauthorize the program for five years in 2012. (Then Senator Tom Harkin opposed that legislation.) This week, Grassley urged his colleagues to support what he called a “targeted” program, “not a bulk collection system,” designed to keep the country safe from terrorist attacks. I enclose below the full text of his prepared statement.
Senator Joni Ernst joined Grassley in supporting the cloture motion and final passage of the FISA extension, which the Senate approved today by 65 votes to 34 (roll call). To my knowledge, Ernst has not released a statement explaining her vote to continue warrantless surveillance. I am seeking comment from her office as well as from Loebsack and Young.
Any relevant comments are welcome in this thread.
Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On the Consideration of the FISA Amendments Reauthorization Act of 2017
January 16, 2018
Mr. President, I stand today in support of S. 139, the FISA Amendments Reauthorization Act of 2017.
As we know, the first responsibility of government is to protect our citizens. To do so, we must make sure that those who protect us have the tools to keep us safe. S. 139 does this. It provides the intelligence community and law enforcement with the right tools. It also minds the civil liberties and privacy protections our Constitution requires, especially given the ever-changing technological landscape.
The importance of our country’s safety and security has been highlighted in several events from just the past two years. We often get lost in the constant news cycle. But let’s not forget that New York City suffered three significant terrorist attacks in the past 15 months alone.
In September 2016, a terrorist detonated a pressure cooker bomb in New York’s Chelsea neighborhood. A second pressure cooker bomb was found a few blocks away but didn’t detonate. Earlier the same day, a bomb went off near the start of a Marine Corps charity race.
This past October, Sayfullo Saipov drove a rented truck onto the bike lane and pedestrian walkway of the West Side Highway. He mowed down numerous civilians, killing 8 people and injuring 12 others.
And this past December, Akayed Ullah detonated a bomb in the New York City subway tunnel to the Port Authority Bus terminal, injuring several people near him. He told investigators that he did it in the name of ISIS.
In June 2016, Omar Mateen shot and killed 49 and injured 53 others in Orlando, also acting in the name of ISIS. In September 2016, a terrorist stabbed 10 people at a mall in St. Cloud, Minnesota. In November 2016, a terrorist injured 13 after driving into and trying to stab students and teachers at Ohio State University. And, in December 2015, we had the San Bernadino shooting, where terrorists killed 14 and injured 22.
We’ve also seen terrorist incidents evolving around the world, especially impacting our friends in Europe. In the U.K. alone, there have been at least a half dozen terrorist attacks in the past year, including a subway bombing in London, injuring 30 people; a van plowing down pedestrians on London Bridge, injuring 48 and killing 8 people; the Manchester concert bombing in which 22 people were killed; and the attack on British Parliament in London, killing 4, including Kurt Cochran of Utah.
These attacks show the threats are real and we must protect our country by lawful means. Congress has done so by providing lawful authorities such as Section 702.
The National Security Agency has called the 702 program “the most significant tool” in the NSA arsenal for the detection and disruption of terrorist threats. The NSA Director has said publicly that “there is no alternative way” to replicate 702 collection. Some estimate that over 25% of all current U.S. intelligence is based on 702 collection.
There are some key examples:
• Haji Iman rose from a high school teacher to becoming the second in command of ISIS. He was a main focus of NSA’s counterterrorism efforts. The U.S. government offered a $7million reward for information leading to his capture. We spent over two years looking for him. He was ultimately captured, based almost exclusively on intelligence information collected under the 702 program.
• Najibullah Zazi is in prison for planning to attack the New York City subway system with explosives in 2009. He received explosives training in Pakistan from al Qaeda. He was discovered after he corresponded with an email address used by an al Qaeda courier in Pakistan, seeking advice on how to build explosives. The section 702 program uncovered the correspondence. Without that discovery, the subway-bombing plot might have succeeded.
• In October 2013, the FBI began investigating Shawn Parson, a foreigner from Trinidad and Tobago, after Parson began posting comments online expressing a desire to commit an attack against Western interests. Information collected through Section 702 revealed Parson’s efforts, and was instrumental in identifying additional members of Parson’s network.
• Through the 702 program, the FBI assisted foreign partners to identify the individual who committed the 2016 New Year’s Eve terrorist attack at a nightclub in Turkey. During that attack, 38 people were killed or seriously injured, including an American citizen.
And those are just the unclassified examples.
It is important to remind my colleagues of the purpose behind Section 702 – it provides the government the authority to collect the electronic communications of foreigners located outside the United States. Under Section 702, it’s against the law to target anyone in the United States, or any American citizen, wherever that citizen is in the world.
The program is targeted – it is not a bulk collection system. Furthermore, the FISA Court must approve targeting procedures to ensure that only appropriate individuals are subject to surveillance. Minimization procedures limit the handling and use of information that is collected. All three branches of government have a hand in overseeing the program.
It is also important to remind my colleagues that this legislation was first signed into law in 2008. When we took up consideration in 2012 and debated the law, we reauthorized the law unchanged. The 2012 clean reauthorization had the full support of President Obama.
Some of our Senate colleagues oppose this bill. Their first, and most consistent, claim is that Section 702 violates the Fourth Amendment to the Constitution. Our colleagues claim it’s an “end-run” around the Constitution. Others call it a “legal loophole,” a “backdoor,” or “warrantless surveillance.” Nothing could be further from the truth. Section 702 is fully consistent with the Constitution.
Every federal court to review 702 – including the 9th Circuit – has upheld the law. The Supreme Court’s recent decision to deny review of the 9th Circuit case lets stand that court’s decision. These courts consistently determined that a warrant is not required to collect or query Section 702 information. Moreover, the independent Privacy and Civil Liberties Oversight Board reviewed the entire legal framework of the 702 program and also found it to be constitutional.
The other main claim against the bill is that it provides “new” powers to the government. Again, this is simply not true. Nevertheless, this bill does include some significant reforms. First, the bill requires the FBI to get a warrant in some criminal cases. In other words, we’ve added a warrant where courts have held none are necessary. The bill also provides protections for whistleblowers, and requires an Inspector General report.
In short, this bill provides our government the tools it needs to protect our national security, while providing some much needed transparency measures, and increased privacy and civil liberties protections.
I urge my colleagues to vote in favor of this important legislation.