By Christopher O’Shea
A few weeks ago, President Trump treated us to another amusing experience on Twitter.
“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?
— Donald J. Trump (@realDonaldTrump) January 11, 2018
He was referencing, of course, the Foreign Intelligence Surveillance Act (FISA). FISA, originally signed into law in 1978, established procedures for the authorization of electronic surveillance, business records, and physical searches. America did this for the purpose of gathering foreign intelligence. The original law isn’t the controversial part, though.
In 2008, Congress amended the law to allow intelligence officials to oversee communications of foreigners outside the U.S. without a warrant. While this isn’t controversial in principle, problems arise when a foreign target communicates with an American. This is because, unlike with foreigners, the Constitution and the Fourth Amendment supposedly protect American citizens.
Imagine, for example, a journalist contacts a foreign correspondent in Iraq via email and mentions Abu Bakr al-Baghdadi as part of a story on ISIS. They and their foreign correspondent would then be entered into a database, searchable at any time without a warrant.
Good Intentions Don’t Justify Bad Results
While the journalist and their privacy rights are not the intended target of FISA, they are still the victims. Like with every war, the War on Terror has casualties. In this case, the casualty is the Fourth Amendment. At any given time, an NSA agent can search this database, sans a warrant, and search any communications that involve this journalist. They can do this even if the specific communications do not involve the original foreign correspondent.
Inevitably, some will argue that, “if you have nothing to hide, you have nothing to fear,” and often with success. The problem here, however, is that you do not necessarily need something to hide to have something to fear. According to CNN, the NSA’s internal watchdog detailed a dozen instances in the past decade in which its employees intentionally misused the agency’s surveillance power, in some cases to snoop on their love interests.
According to the Daily News, an analyst also was found looking up the phone number of a friend’s son. Outside of these cases, the most troubling issue is that the NSA has spied on American citizens even without evidence that they posed a threat to national security. Politically active citizens tend to comprise most of those that we find out have been spied on. So, if you don’t want your webcam remotely turned on, maybe you should reconsider that rally or #TaxationIsTheft hashtag.
Politicians Don’t Care About Your Privacy
When debated in the Senate, 3 Democrats and 2 Republicans attempted a bipartisan filibuster of the FISA reauthorization bill. Senators Rand Paul (R-KY) and Ron Wyden (D-OR) led the coalition, making the simple request that agents get a warrant to search for and monitor American citizens.
Sen. Paul even submitted an amendment to require this, but the Senate shut both it and the filibuster down. For a much larger coalition of Democrats and Republicans, security was more valuable than liberty.
After that, President Trump signed the bill into law, keeping this Fourth Amendment mockery around until at least 2023. While the original law in the seventies had understandable goals, we must draw lines now between liberty and security. If we are sending troops overseas to fight for our freedoms, we must assure that those freedoms are still here when they come back. Come 2023, we must make the right choice and let this law die.