Why We Should All Care About Today’s Senate Vote on the FISA Amendments Act

December 28, 2012

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Trevor Timm
EFF.org

Today is an incredibly important vote for the future of your digital privacy, but some in Congress are hoping you won’t find out.

Finally, after weeks of delay, the Senate will start debate on the dangerous FISA Amendments Act at 10 am Eastern and vote on its re-authorization by the end of the day. The FISA Amendments Act is the broad domestic spying bill passed in 2008 in the wake of the warrantless wiretapping scandal. It expires at the end of the year and some in Congress wanted to re-authorize it without a minute of debate.

The good news is—thanks for your phone calls, emails, and tweets—Congress will now be forced to debate it, which means, we can affect its outcome. In case you forget just how dangerous the FISA Amendments Act is to your privacy, here’s how we described it last week:

The FISA Amendments Act continues to be controversial; key portions of it were challenged in a case before the U.S. Supreme Court this term. In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas. The communications only have to deal with “foreign intelligence information,” a broad term that can mean virtually anything. And one secret FISA order can be issued against groups or categories of people—potentially affecting hundreds of thousands of Americans at once.

Any Senator who wants to stay true to the Constitution should vote no on its re-authorization, but in the alternative, there are four common sense amendments up for debate tomorrow that would go a long-way in curbing the law’s worst abuses.

The Wyden Oversight and Transparency Amendments

Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans.

The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a “significant and systematic” way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans’ privacy.

Ron Wyden’s amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.

In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting “backdoor searches,” whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government’s database of intercepted communications and reviews the Americans’ comunications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.

The Rand Paul Fourth Amendment Amendment

Republican Senator Rand Paul has commendably been one of the few voices unequivocally denouncing the FISA Amendments Act as a violation of the Fourth Amendment. To that end, Sen. Paul will be introducing “the Fourth Amendment Protection Act” which will re-iterate that all US communications, whether sought by US intelligence agencies like the NSA or any government agency, are protected against unwarranted searches and seizures—even if they are held by third party email providers like Google. You can read Sen. Paul’s amendment here.

The Merkley FISA Court Amendment

Both in 2010 and 2011, Obama administration officials promised to work to declassify secret FISA court opinions that contained “important rulings of law.” These opinions would shed light on whether and how Americans’ communications have been illegally spied on. Since then, the administration has refused to declassify a single opinion, even though the administration admitted in July that the FISA court ruled that collection done under the FAA had violated the Fourth Amendment rights of an unknown number of Americans on at least one occasion.

Starting with the precept that “secret law is inconsistent with democratic governance,” Sen. Jeff Merkley’s amendment would force the government to release any FISA court opinions that contain significant interpretations of the FISA Amendments Act so the American public can know how it may or may not be used against them.

The Leahy Sunset Amendment

About the only good part in the original FISA Amendments Act was the provision that stated it would expire after four years so Congress could fully debate its use and abuse before reauthorizing, if reauthorization was even necessary. Unfortunately, Congress has been resisting the debate, and the new bill would extend the FAA for five more years. That means the law would not sunset again until President Obama is out of office. Senator Leahy’s amendment would shorten the law’s length to three years. While any extension of a law that results in unconstitional spying is unacceptable, the shorter the re-authorization, the better.

Please use Free Press’ call-in tool to talk to your Senator’s office on the phone or use EFF’s action center to email your Senators. Tell them to vote for these privacy-friendly amendments and to vote no on warrantless domestic spying.