Big Brother Act of 2012 passes the House

On a vote of 301-118, the House of Representatives on Wednesday moved to reauthorize the Bush administration's warrantless spying bill of 2008 (called the "FISA Amendments Act" or FAA) for another five years, through December 31, 2017.

The administration must be very pleased. As Lamar Smith of Texas said on the floor yesterday before the vote, "President Obama has identified reauthorization of the FISA Amendments Act as the top legislative priority of the intelligence community."

The reauthorization passed the House absent any of the commonsense (and very basic) transparency checks the ACLU and other organizations pushed to be included. The ACLU's Michelle Richardson said of the vote:

Yet again, the House has rubberstamped a law so broad and vague that, despite its passage four years ago, we still have little idea how the government is using it. It is at the very heart of the Fourth Amendment that Americans and their communications are fiercely protected from government intrusion. This law should be amended to include much stronger privacy protections when the Senate takes it up later this year.

The Senate is likely to approve the reauthorization later this year, despite the heroic efforts of Fourth Amendment stalwart Senator Ron Wyden to at least provide basic transparency mechanisms that would allow Congress and the public some insight into how the law's powers are actually deployed.

Other astute commentators have parsed in detail what the vote means in the context of the 9/11 commission and intelligence community needs, and so I won't rehash any of that here.

Instead, I want to highlight a central issue that emerged during the very short debate the House held on FAA before voting to reauthorize it.

Proponents of the bill said repeatedly that the FAA doesn't allow for the intentional "targeting" of US persons, regarding information collection. And that's technically true. But as Representative Zoe Lofgren pointed out in her remarks, the constitutional issue isn't about intentionality or targeting, per se.

That's because the bill allows for dragnet collection of US persons' communications, as long as the government doesn't intentionally target particular US persons during collection. And once the information is collected, Lofgren points out, there's nothing in the bill that prevents the government from snooping through the collected data without a warrant.

Lofgren:

Mr. Speaker, I urge this body to reject this bill. The surveillance bill raises several serious constitutional and civil liberties issues that Congress needs to address and has not addressed in this bill, and I'd like to discuss just one of those. Congress should prohibit the Federal Government from intentionally searching for information on a U.S. person in a data pool amassed lawfully under section 702 of FISA–should such a data ever be amassed–unless the searching official has a warrant.

Now, the FISA Amendments Act of 2008 does not make clear that the government must obtain a warrant prior to searching for information acquired incidentally on a U.S. person in a large pool of data that the government has already lawfully obtained under section 702, should such a data pool ever be amassed. Instead, the information about the U.S. person in such a situation is subject to minimization procedures adopted by the Attorney General, and that must be approved by the FISA court, but that does not explicitly include a warrant requirement, which I think the Constitution requires.

The prohibition on reverse-targeting–where the government deliberately targets a non-U.S. person for the purpose of acquiring information about the U.S. person at the other end of the line–is not a substitute for the warrant requirement to search a database for U.S. persons, should such a database ever be amassed under section 702. Minimization procedures are not a substitute for a warrant in such a case.

Now, I think that the government needs to comply with the Fourth Amendment to the Constitution all the time. I think that the privacy of Americans should not be subject to the lower standard of minimization procedures. That's not in the Constitution. And I think, also, that when we think that we should trade the protections that our Founding Fathers devised for us in the United States Constitution in the effort to buy safety, we're mistaken. We can be safe while still complying with the Constitution of the United States.

I'm mindful that we began this Congress reading most of the United States Constitution on the floor of this House. It's ironic, indeed, that we should be ending this Congress with a bill that does violation to that very body.

Now compare those comments with these, from Representative Lamar Smith:

The FISA Amendments Act both strengthens our national security and expands civil liberties protections for all Americans. The act requires an individualized court order for the government to target an American anywhere in the world. Under the FISA Amendments Act, the government cannot conduct any surveillance overseas without authorization. The government cannot target individuals unless there is a reasonable belief they are not in the United States, which the government must try to ascertain.

The government cannot intentionally acquire communications when the sender and recipient are both in the United States without an

individualized court order from a FISA judge. The government cannot

reverse-target individuals overseas in order to monitor those in the

United States. This means that the government cannot target a U.S.

person simply by monitoring a non-U.S. person that the U.S. person is talking to. And for the first time in history, the government must

obtain an individualized court order from the FISA court to target

Americans outside the United States.

Even if you ignore Representative Smith's reliance on the deceptive "intentional" collection and "targeting" arguments, and his ludicrous comments about the FAA's supposed expansion of civil liberties for Americans, his statement falls short because it doesn't take into account the extreme secrecy with which the powers granted under FAA are being carried out. He addresses transparency and accountability in his remarks, but appears to believe that the executive branch can police itself, and that the information it provides to Congress at present is enough.

Lamar Smith says Congress has enough information about how the law is being implemented to know that it's protecting our rights, even though the NSA itself says it doesn't know how often US persons have been spied on using the powers the statute provides. If the NSA doesn't know, how could Congress possibly know?

How could anyone seriously assert that the law is functioning in line with the our Constitution when they don't know how the law is functioning?

Representative Tom McClintock spoke eloquently to the issue of transparency — or the lack thereof:

Mr. Speaker, FISA allows the government to target foreign nationals and to intercept their communications, even those with American citizens, without a warrant, as required by the Fourth Amendment.

Now, we're told don't worry. The law requires that any irrelevant

information collected in this manner be disregarded. Well, here is the problem. The enforcement of this provision is, itself, shrouded in secrecy, making the potential for abuse substantial and any remedy unlikely. Secret courts and warrantless surveillance are not compatible with a free society or the English common law or the American Constitution.

Unfortunately, far be it from shutting down this dragnet warrantless spying program, the House of Representatives of the US Congress rejected even basic transparency amendments that would have granted Congress more oversight and the public more access to information about how the powers are being used against us.

Before the vote, the ACLU's Richardson wrote:

Instead of blind faith in the executive branch, every member of the House should demand that the administration publicly disclose the following before proceeding with reauthorization:

Copies of FISA court opinions interpreting our Fourth Amendment rights under the FAA, with redactions to protect sensitive information (the Department of Justice can write summaries of law if necessary);

A rough estimate of how many Americans are surveilled under the FAA every year;

A description of the rules that govern how American information picked up by FAA surveillance is protected.

Regrettably the House, evidently content to remain in the dark about how their law actually works in practice, approved a five year extension of dragnet warrantless spying.

Congress is again failing us when it comes to basic protections against improper government surveillance, so the ACLU is working the other major angle: the courts.

Our lawsuit, Amnesty et al. v. Clapper, filed on behalf of journalists and human rights workers immediately after the signing of the FAA in 2008, was initially thrown out of court when the government argued — and a judge agreed — that our clients lacked standing because they couldn't prove they'd been spied on under the law. (Think about that for a second — it's awfully hard to prove something the government goes to extreme lengths to keep secret, no?) We appealed that decision and won. The government in 2011 asked the court to rehear the standing issue but it declined.

Then, in 2012, the Obama administration appealed on the standing issue all the way to the Supreme Court. The highest court in the land will now have the opportunity to rule on whether our clients have a right to challenge the FAA's constitutionality. Oral argument is scheduled for October 29, 2012.