Section 702 loophole allows sweeping warrants to spy on U.S. citizens
Congress passed the FISA Amendments Act in 2008 to enable surveillance of persons or organizations outside the United States, but in practice section 702 of the act includes sweeping warrants for the National Security Agency (NSA) and its PRISM surveillance program to collect static information stored in widely used online portals like Google and Facebook — no matter whose information it is. Section 702 of FISA is set to expire on Dec. 31.
“Congress should let it expire,” said Libertarian National Committee Chair Nicholas Sarwark. “At the very least, there should be a standalone up-or-down vote in both houses of Congress, so Americans can know which politicians put the illusory quest for security ahead of the Fourth Amendment.”
One of the cornerstones of the Bill of Rights, the Fourth Amendment to the U.S. Constitution unequivocally states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Thanks to the broad surveillance warrants that FISA section 702 enables, if someone has an informally acquired Facebook “friend” who is a “person of interest” to Attorney General Jeff Sessions or Director of National Intelligence Dan Coats, all the information on their Facebook page is subject to being swept up. If someone’s Google search leads inadvertently to a Russian-controlled fake news site, their Google browsing history is subject to the intelligence vacuum cleaner. Both are clear violations of the probable cause clause of the 4th Amendment.
“Upstream” surveillance targets data in transit, including email, texts, and telephone calls. So, if an American citizen innocently has a phone conversation with someone of interest to the spy agencies, their phone calls, text messages, and email are swept up — without probable cause. All that’s required is a FISA court rubber-stamp approval of the NSA’s upstream surveillance method.
Intelligence targets are not limited individuals, but can include entire groups of people. If someone is sympathetic to the refugees of any of the many wars going on around the world — Syria, Yemen, Libya, Afghanistan, Iraq, Nigeria, Myanmar, Sudan, and dozens more — and that person communicates about those sympathies to any person of interest to our 17 intelligence agencies, they can be caught up in the surveillance dragnet.
“No one questions that we live in a dangerous world, and that threats to our security are posed by foreign actors,” Sarwark said. “The real question is how to mitigate that risk. The first step is to stop creating that risk in the first place. U.S. armed services are stirring up hornets’ nests in six countries through the use of significant military activity, including drone attacks. None of these six countries — Syria, Iraq, Afghanistan, Pakistan, Somalia, or Yemen — provide an existential threat to our country. We should initiate an orderly withdrawal from all of them.”
If we count the deployment of U.S. special operations forces, the number of countries with active U.S. military actions swells to 137.
“Common sense says that rattling hornets’ nests in 137 countries around the globe will lead to getting stung by hornets,” Sarwark said. “If we stop treating the world as a battlefield, the world will stop treating our country as a battlefield. This would slash the defense budget, and, as a side benefit, there would be no reason for the U.S. government to covertly spy upon its own citizens.”