On June 18, the US House of Representatives voted 283-175 against an amendment that would have limited the government’s ability to collect the personal communications of US citizens without a warrant. The amendment was introduced by Reps. Justin Amash, a Republican from Michigan, and Zoe Lofgren, a Democrat from California, as part of a federal spending bill that includes funding for the Labor Department, the Department of Health and Human Services and the Department of Defense.
The proposal was specifically written to block provisions of Section 702 of the Foreign Intelligence Surveillance Act (FISA) of 1978 that allows the US government—in the name of collecting intelligence on non-Americans located outside the US—to inherently and intentionally collect and store the communications of American citizens.
The motion by Amash and Lofgren had attracted the support of 42 civil rights groups including the ACLU, Arab American Institute, Electronic Frontier Foundation and Fight for the Future. In a letter to the House, the coalition of organizations wrote that adoption of the amendment would “significantly advance the privacy rights of people within the United States.”
The one-page amendment stated in part, “This certification does not authorize any acquisition that intentionally targets a person reasonably believed to be located outside the United States if a significant purpose of such targeting is to acquire the communications of a particular, known person reasonably believed to be in the United States. …”
In explaining the motion, Representative Amash said, “The government can search and sweep in billions of communications, including communications of Americans, and then query that data. … The Amash-Lofgren amendment puts in basic safeguards to allow the government to continue using Section 702 for its stated purpose of gathering foreign intelligence, while limiting the government’s warrantless collection of Americans’ communications under FISA.”
The FISA Act has been revised and updated multiple times since its adoption. The initial passage was in response to the illegal use of federal resources by the Nixon administration in the late 1960s and early 1970s to spy on political and civil rights organizations within the US.
The law created special mechanisms for judicial and congressional oversight of the federal government’s surveillance of foreign entities and individuals within the US. Among these structures was the creation of the FISA court (also known as the Foreign Intelligence Surveillance Court or FISC) to which the FBI and NSA must submit requests for warrantless searches for approval. The three-judge FISC panel operates in complete secrecy, and there is no requirement for its decisions to be released to the public.
Over the years, and especially since the terrorist attacks of September 11, 2001, and the subsequent US military occupation of Afghanistan and Iraq, the law has been used to cover up the expansion of warrantless domestic wiretapping and eavesdropping by the intelligence state.
Six years to the month after the revelations by former intelligence officer Edward Snowden that the NSA was systematically collecting the private e-mail messages and phone calls of everyone all over the world, the vote in the House of Representatives demonstrates that such activities are ongoing.
This is no surprise, as the provisions of Section 702 have remained following post-Snowden revisions to the FISA law. The so-called USA Freedom Act of 2015—explicitly sold to the American people as the end of government spying on the public—and the FISA Amendments Reauthorization Act of 2017 both preserved Section 702 in its original formulation.
Though the Amash and Lofgren amendment was offered on a spending bill and not on government surveillance policy specifically, its defeat still stands as a measure of the willingness of the US political establishment to openly flout Fourth Amendment protections against “unreasonable searches and seizures.” Significantly, among those voting against the amendment were many Democrats including Speaker of the House Nancy Pelosi and Chairman of the House Intelligence Committee Adam Schiff.
In response to the vote, Evan Greer, deputy director of Fight for the Future, said in a statement, “It’s good to know that House Democrats like Adam Schiff are ’resisting’ Trump by voting to ensure that he has limitless authority to conduct mass warrantless surveillance,” adding, “The Democrats who voted against this common sense amendment just threw immigrants, LGBTQ folks, activists, journalists, and political dissidents under the bus by voting to rubberstamp the Trump administration’s Orwellian domestic spying capabilities.”
Although there have been press reports that the Trump Administration was not planning to renew legal authorization for the NSA data harvesting program, the persistent congressional support for Section 702 of FISA shows that such practices are critical to the state security apparatus. The New York Times, for example, reported in March that, according to Luke Murray, the national security advisor to Republican House Minority Leader Kevin McCarthy, the NSA was quietly shutting down the program due to “technical irregularities,” not concerns about the violation of constitutional rights.
On the contrary, police and state intelligence information gathering is on the increase against US citizens, especially those who have taken a stand against the Trump administration’s immigration policy. As reported by the World Socialist Web Site, this now includes the use of sophisticated methods of social media content collection for the purpose of profiling and targeting individuals and organizations within the US for harassment, intimidation, deportation and arrest by the Department of Homeland Security.