Unauthorized Spying On Americans And 702 Reauthorization
Once again, Americans' privacy is under attack, this time by the spying eyes of our own U.S. Government. And people across the U.S. are wondering what is this section 702 issue.
Well, section 702 is a provision of the Foreign Intelligence Surveillance Act. We call it FISA.
It permits government to monitor the communications of suspected foreign agents, including terrorists, and to find out, in that communication, if that foreign agent wants to hurt us. However, sometimes these individuals under surveillance communicate with American citizens, and this surveillance allows the conversations of ordinary citizens to be recorded, and that includes text messages, emails, and the conversation itself.
But what many Americans don't realize is these secret communications are not destroyed by the intelligence agencies. They are kept and kept forever.
In fact, the government stores this data, and often goes back into that data and searches it, without a warrant, in violation of the Fourth Amendment of the Constitution, for information on American citizens. What we do with the foreign agents, hey, it is okay.
But government then takes that information they have seized on Americans and then goes back and looks through it without a real warrant. That includes the IRS, the FBI.
And they get the NSA to give those conversations on Americans, unrelated to the conversation with the terrorist, and they use that information to maybe prosecute them for some unrelated offense years later. Usually, this subsequent search is for reasons wholly unrelated to the original collection.
Essentially, the government uses this procedure to spy on Americans who may have done no wrong, and the search is not based on probable cause, not based on a real warrant from a real judge. The National Security Agency is designed to keep a close watch on terrorists and foreign agents, not Americans.
NSA surveillance is supposed to keep us safe from those foreign agents who wish to do us harm. But before the Federal Government decides to invade the privacy of Americans, they should obtain a real warrant.
Under current law, FISA courts, those are secret courts that operate in secret and issue secret warrants--I have got a whole issue problem with secret courts in this country anyway, based upon the history of the Star Chamber in England. However, those secret courts allow government to search and collect that data, and the FISA courts almost always grant the requested warrant on the foreign agent.
Our Founders feared that a government powerful enough to commit unreasonable searches and seizures on Americans should be closely watched. That is why they crafted the Fourth Amendment, to protect our right to privacy.
As a former judge, I heard issues on the Fourth Amendment every day. And let me read it again, especially for those folks in NSA.
“The right of the people to be secure in their persons, houses, papers, effects''--that would be conversations--``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.'' That applies to the NSA.
If they can get a warrant from a real judge based on probable cause to search that data on Americans, go for it. But they can't.
They just seize the information and peruse it later and get information on Americans and then prosecute them. This kind of reverse targeting on Americans is not what Congress intended under 702 of the FISA authorization bill.
Technology may change, but our Constitution never changes, and spying on Americans just has to stop. Americans should not be forced to sacrifice liberty and constitutional rights for security, especially for overreaching Federal bureaucrats.
Regardless of the result surrounding the alleged incidental capture of campaign officials' conversations, the American public must realize the implications of this little provision called 702. Reverse targeting of Americans without a search warrant based on the Fourth Amendment has got to stop. Can't do it.
But right now Congress has the ability to reform overreaching law as part of the larger FISA reauthorization process that will take place this year. Opponents of 702, the concept that you can't spy on Americans, are wishing for what they call a pure reauthorization of FISA, without any new safeguards.
They argue that these mass invasions of privacy will make us safer. Those who preach we must sacrifice the Constitution on the altar of false security are wrong.
We must never abdicate our rights because the national spy agency, NSA, demands it. In fact, even a FISA court judge found that NSA analysts had been collecting searches that violate the procedures under FISA ``with much greater frequency than had previously been disclosed to the court''.
The FISA court called this a very serious Fourth Amendment issue. Well, no kidding.
It is a violation of current law, but the NSA violates current law and spies on Americans. After these findings were released and NSA was caught, the NSA pledged to stop the warrantless surveillance of Americans.
But their promise is useless. FISA and 702 must be fixed by inserting the specific language that prohibits reverse targeting on Americans without a valid search warrant.
If government wants information on Americans, get a warrant. Without clear and specific language, our intelligence agencies will continue these unconstitutional searches, even if they promise to end their procedure.
But we can't trust the NSA not to spy on Americans, so Congress needs to have an open debate on the spying of Americans and not reauthorize the FISA procedure unless we make sure that the American right of privacy is protected. Congressional action must be taken on this issue.
It is time to end spying on Americans. If you want to spy on an American, get a real warrant from the Fourth Amendment.
Continue that surveillance of foreign nationals. That is a different issue. But you can't do both.
You must protect the American right of privacy. Congress has that obligation because that is our job to enforce the Fourth Amendment right of privacy.
And that is just the way it is.