UPDATE – The Senate today rejected the inclusion of four privacy-friendly amendments before voting to reauthorize the controversial Foreign Intelligence Surveillance Act (FISA) that grants the federal government the authority to clandestinely monitor electronic communications involving foreign citizens coming into or out of the United States without the probable cause required for traditional warrants.
In an article published on the Electronic Frontier Foundation’s DeepLinks Blog yesterday, EFF activist Trevor Timm celebrated the fact that the Senate was, in the end, forced to openly debate the FISA amendments, a debate that Timm claims, some in the senior legislative house tried to avoid having.
Timm wrote that any Senator seeking to stay true to the constitution should vote no on the reauthorization, but in the end, the Senate not only reauthorized FISA but voted to reject the four, amendments endorsed by the American Civil Liberties Union and the EFF.
FISA became law in 1978 and is intended to regulate how the government can collect “foreign intelligence information.” The bill was last authorized in 2008 and has since been at the center of a number of lawsuits. The bill’s proponents advocate it as an important tool in the U.S.’s ongoing war on terror.
On Twitter, the EFF characterized the Senate’s rejection of the four amendments as “disgraceful.” TImm Tweeted “What a shame,” as the bill passed, 73-23.
The rejected amendments were proposed by Senators Ron Wyden, Rand Paul, Jeff Merkley, and Patrick Leahy.
Wyden’s, which was shot down 52-43, would have forced the National Security Agency to reveal an estimate of how many Americans are affected by FISA. The NSA has argued that the enforcement of this regulation would violate the privacy of American citizens. There was a second Wyden amendment clarifying that FISA does not give the government the authority to commandeer the domestic communication of American citizens. It’s not clear if this was bundled with his other amendment.
Paul’s amendment attempted to protect the communication data of American citizens held by third-parties (e.g. emails stored in Google’s Gmail). It would have required that prosecutors provide probable cause and acquire a warrant before accessing information from third party sources. It lost lost 79-12.
The Merkley amendment would have required the Attorney General to disclose court cases in which FISA was deployed, but ultimately failed to pass with a 54-37 vote.
The Leahy amendment sought to shorten the bill’s tenure from five to three years but failed as well, 52-38.
In an email interview, Timm told Threatpost that Senate leadership intentionally opted out of voting on the bill when it was ready for the floor in September, and instead pushed the vote back until four days before it would expire.
“Sen. Feinstein disingenuously lamented how she’d like to support some of the amendments but couldn’t because of the time crunch (which was wholly created by her and Senate leadership),” Timm told Threatpost via email. “This tactic stifled debate on the bill and prevented these common sense transparency and oversight from having a full hearing.”
The EFF said it will continue to fight against warrantless wiretapping in the courts. They are challenging the NSA’s larger dragnet spying program while the ACLU has taken to the courts to challenge the constitutionality of FISA. According to Timm, the government is asking the courts to dismiss the EFF’s case because the NSA’s dragnet program is a “state secret” and the government is arguing that the ACLU’s case shouldn’t go forward because that group cannot prove that any Americans are in fact being spied on.
“FISA Amendment Act’s proponents claim it’s vital to stop terrorists, yet there’s no real evidence that is the case,” Timm told Threatpost. “Sen. Feinstein read a list of all the terrorism suspects arrested in the last four years, yet she didn’t say they were arrested because of FISA. And if it was, there’s no reason to believe getting a warrant like every other criminal investigation in American history, would’ve impeded law enforcement at all.”
We reached out to the office of the bill’s sponsor, Rep. Lamar Smith, and his office sent us the following quote in a press release.
“Our national security agencies operate around the clock to protect America from foreign terrorist groups and spies,” Lamar said in a press release. “But in order to keep America safe, we must be able to conduct surveillance of foreign terrorists and intelligence organizations. H.R. 5949 enables the intelligence community to gather information on foreign terrorists overseas, while still protecting the civil liberties of U.S. citizens at home and abroad. The President should sign this bipartisan bill to ensure that our intelligence capabilities are not dismantled and our nation not put in danger.”
