Congress Decides Whether the Fourth Amendment Means Anything

FISA 702 will expire at the end of the year, God willing.

Today, Congress is debating a renewal of FISA Section 702, the provision that has been used by the FBI and other federal agencies to spy on Americans. In May of this year, the FISA Court itself issued a stunning retribution of the FBI and intelligence agencies, and documents thousands of violations of American’s rights under the Constitution. This includes the FBI lying to the Justice Department and the FISA Court to spy on Carter Page, and thus the Trump 2016 campaign. The FBI has since apologized for these clear violation of the 4th Amendment and abuse of every agent’s oath of office to preserve and protect the Constitution. Here is how the Brennan Center for Justice, a non-partisan think tank focused on law and justice, describes the significant violations perpetrated by the NSA, FBI, CIA and others:

“Although ostensibly targeted at foreigners, Section 702 surveillance inevitably sweeps in massive amounts of Americans’ communications. Recognizing the impact on Americans’ privacy, Congress required the NSA to “minimize” the sharing, retention, and use of this “incidentally” collected U.S. person data. But the government and the FISA Court have embraced an interpretation of “minimize” that is remarkably… maximal. The NSA shares raw data with multiple other agencies — including the FBI and the CIA — and all of them retain the data for a functional minimum of five years. Moreover, the FBI routinely combs through it looking for Americans’ communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation.”

Read that again: “the FBI routinely combs through [your and every American’s data] to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation.”

Let’s compare that to the 4th Amendment text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The FBI and other agencies have been violating the right of the people to be secure in their persons and effects - without warrant nor probable cause - for fifteen years. The only reason the FBI apologized and allegedly changed their policy is that another agency - the ODNI - released the findings. The Director and leadership of the FBI would have presumably allowed this to continue unabated otherwise.

Let’s face it, the sort of power granted by this act is precisely what the Framers of our Constitution had in mind when they wrote and passed the Bill of Rights, especially the Fourth Amendment. We seem to lose our bearings when the effects being violated are digital rather than physical so consider this: if the FBI had the power to - whenever it wanted, without your knowledge and with no suspicion of an underlying crime - enter your home to search all of your papers and personal effects as well as your entire phone and computer records - every search, every text, email, tweet and picture - would you approve? Of course not. But the FBI and other agencies are doing this every day, with only light oversight that occurs well after the violation.

Perhaps worse than the gross violation of every American’s rights in this process is the fact that these agents are doing these searches even when they lack a predicate for investigation. This flies in the face of everything we should believe about law enforcement. It may be a bit confusing for the same reasons as above (digital vs. physical world) so imagine this: every place in America is filmed twenty-four hours a day and the FBI watches all footage every second to find crimes. Would you be comfortable with this? That is exactly what they are doing here.

Where in the Constitution or subsequent law have we provided for state police that seek out crimes which no one has reported? Is it really a fair use of the awesome policing power of the government to allow unsupervised access to your data in search of a crime? How many actual cases go unsolved while the FBI dedicates people, resources and money to these unconstitutional fishing expeditions?

In sum, FISA 702 is a ridiculous violation of the Constitution and any lover of freedom and the people’s rights. It has been, and will be used in the future to further curtail your rights and a mildly tyrannical leader could use this power to enforce compliance to a totalitarian state. See China, where all of your data is monitored and you receive a social credit score which determines what the state will allow you to do, including throttling your internet speed or denying travel if your data is unfavorable to the state.

You should not support any politician or candidate voting to renew this abomination.