In a blow to civil rights, and seemingly the Fourth Amendment, the Senate this morning voted to approve a bill that reauthorizes a foreign surveillance program that keeps tabs on peoples' emails and phone conversations, all without a warrant. While the whole country waits on pins and needles for the Fiscal Cliff to fall out from under us, this could be even more important, as our freedom of liberty is truly threatened, all in the name of national security.
It's called FISA, the Foreign Intelligence Surveillance Act, and it's set up to allow the monitoring of U.S. citizens who speak with foreigners. The vote extends the life of the bill for the next five years. Since the House already gave the bill the thumbs up, it now goes to the President to get his seal of approval, which he is expected to sign.
The problem is this basically gives the U.S. government carte blanche in spy-mode when it comes to eavesdropping on the communications of suspected terrorists. They don't need court approval now. They can just listen on the pretense that it makes our country safer from a possible terrorist attack. Of course, determining just who is a foreigner and figuring out their real or perceived "threat" to America is another problem in and of itself. On top of that, it's a lot of leeway and freedom for law enforcement and the government to listen in on the often mundane conversations between its citizens.
Road Blocks And Detours
There's been some very real criticism of FISA, and it's even crossed normally staunch party lines.
The biggest detractors to the bill were Sens. Ron Wyden (D-OR), Patrick Leahy (D-VT), Jeff Merkley (D-OR) and Rand Paul (R-KY), all of whom wanted to protect the rights of people being unfairly monitored.
During the discussion session, Wyden point-blank asked if any U.S.-based email or phone communications were picked up by the government during surveillance of foreign targets to which Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) replied that those incidences were "few" and "inadvertent." In other words, yes, it has happened.
They proposed amendments to extend the bill for three years instead of five, declassify FISA court opinions, and clarify that the Fourth Amendment protects U.S. citizens from intelligence-related searches done overseas. All three amendments were shot down.
Here's a full video of Wyden's impassioned yet failed attempt to sway the Senate:
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, (EPIC), calls this a missed opportunity by the Senate to establish safeguards to Fourth Amendment rights and create much needed government accountability. Earlier this year, Rotenberg testified before a House judiciary Committee on this very issue. Yet the House didn't heed his words and voted the same way the Senate did today.
With the heavy risk of misuse and abuse, Rotenberg calls FISA one of the biggest failures of Internet security, right there with the Patriot Act.
"It's a very broad authority," he said. "Our view has been when you create broad authority for the government, you need to create counter oversight."
Jim Fenton, the chief security officer at the digital identity company OneID, has worked with intelligence agencies before. He says his experience included professionalism and good intentions, but warned that a lack of transparency with FISA, and rules that legislatures are confused with does not bode well for public perception of those groups.
"The government's lack of transparency about surveillance doesn't inspire trust," he said. "We should be working to differentiate ourselves from countries who aren't as free in terms of surveillance of its citizens."
"This vote was nothing less than abdication by Congress as its role as watchdog over Executive power, and a failure of its indepedent obligation to protect the Bill of Rights," Timm wrote. "The FISA Amendments Act and the ongoing warrantless spying on Americans has been, and will continue to be, a blight on our nation and our Constitution.
So, where does this leave us now?
With the battle in Congress over, and the President expected to sign, the spotlight turns to the Supreme Court. In the next few months, the highest court in the land will pen an opinion on a case that highlights the problems with FISA: Clapper Vs. Amnesty International, the ACLU's challenge to FISA, which will determine whether citizens will have the ability to sue the government in cases of unlawful surveillance under FISA. The opinion is expected by summer 2013 and will set a precedent if people can go to court to bring these challenges.
"We've got out fingers crossed," Rotenberg said. "There has to be more public accountability."
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