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Before Congress decided to give the federal government an unscheduled and unpaid vacation last week, the legislature actually did take some action, and what an action it was. On Jan. 18, the Senate voted to reauthorize the section of the Foreign Intelligence Surveillance Act that allows the National Security Agency to gather large amounts of information from the communications of Americans under certain circumstances.
The vote sort of got lost in the shuffle of the budget and immigration showdowns going on in Washington at the moment, but it’s a move that has far-reaching and potentially long-lasting consequences for Americans. In the short term, this reauthorization gives the intelligence community the ability to continue collecting information and records of communications between some Americans and foreign citizens.
“This means six more years of warrantless surveillance under Section 702 of the FISA Amendments Act. This is a long-abused law marketed as targeting foreigners abroad but which—intentionally and by design—subjects a tremendous amount of our Internet activities to government review, as they pass through key Internet checkpoints, and as they are stored by providers like Google and Facebook. Ultimately, the NSA uses Section 702 to sweep in and retain the communications of countless non-suspect Americans,” Cindy Cohn, executive director of the EFF, wrote in an open letter after the reauthorization vote.
The NSA has been collecting and storing this information for many years. Under Section 702 of FISA, the agency is allowed to collect things such as emails, phone records, and other information without a warrant. The law is designed to collect intelligence on foreign citizens who are located outside the United States, but it has been used to collect Americans’ information when they communicate with some foreign citizens. The data that NSA collects under this law then sits in a database that the agency uses for its purposes, but is also available to the FBI.
“Today’s action also means six more years of FBI access to giant databases of these NSA-collected communications, for purposes of routine domestic law enforcement that stray far from the original justification of national security,” Cohn said.
Section 702 is controversial for a number of reasons, and became known widely after Edward Snowden revealed its use by the NSA several years ago. Privacy and civil liberty advocates say the section is unconstitutional because it violates Americans’ rights under the Fourth Amendment. And other opponents worry about the amount of power Section 702 gives to the intelligence community and law enforcement.
“It is worse than business-as-usual: It explicitly authorizes warrantless searches of law-abiding Americans, allows for the collection of communications entirely among innocent Americans who reference the wrong foreigner, and gives the attorney general unchecked power to decide when the government can use what it finds against us, to pick just three of its many troubling provisions,” Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence and a vocal opponent of warrantless surveillance, said in a statement after the vote.
The reauthorization of this measure has been under discussion for many months, and there were a number of other bills put forward by legislators that gave the NSA the capabilities it needs without also providing room for potential abuse. None of those bills got to the point of a vote in the full Congress.
While the reauthorization of Section 702 is seen as a setback for privacy, the EFF’s Cohn said there are still things that can be done in the aftermath of the vote.
“We aim to bring mass surveillance to the Supreme Court. By showcasing the unconstitutionality of the NSA’s collect-it-all approach to tapping the Internet, we’ll seek to end the dragnet surveillance of millions of innocent people,” she said.
“Together, we can make it more difficult and more costly for the NSA’s spying eyes to ensnare innocent people. And we will help technology users increase their digital security against bad actors.”