Congressional Votes on Controversial Surveillance Law Close Door on Privacy Debate—Or Do They?

Posted on by Tony Kontzer

Everywhere Americans look today, threats to their privacy are prevalent. Whether hackers are gaining access to our financial data or social media accounts, our location is being compromised by the GPS technology in our phones, or Internet of Things devices such as digital assistants and connected Barbie dolls passively listening to conversations in our homes, privacy is proving to be increasingly elusive.

With that backdrop, the recent congressional votes to continue a warrantless surveillance practice used by the National Security Agency provides the latest evidence that privacy continues to take a back seat to security.

In the last two weeks, both the House of Representatives and the Senate have voted to extend the controversial Section 702 of the FISA Amendments Act of 2008, which allows the NSA to collect communications between Americans and foreign targets. The controversy stems from the fact that while the law is written specifically to collect surveillance on the foreign targets, mission creep regularly translates to information on Americans being scooped up as well.

The votes, which defeated a bipartisan effort to put new limits on the NSA's activities, have raised the concerns of watchdogs such as the Electronic Frontier Foundation, which believes that the NSA's practice oversteps the boundaries established by Section 702.

"As the law is written, the intelligence community cannot use Section 702 programs to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures," the EFF wrote in a summary of Section 702. "But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications." 

In a letter written before the vote on behalf of the congressmen and congresswomen who supported changes to section 702, it was clear that those opposed to a green light of the existing version of Section 702  equally viewed a vote in support of extending the current law as a blow to civil liberties. 

“FISA’s purpose is to collect foreign intelligence, but without additional meaningful constraints, Congress is allowing the government to use information collected without a warrant against Americans in domestic court proceedings,” wrote four senators.

The vote appears to effectively end the privacy debate that's raged around the NSA's surveillance practices since former NSA contractor Edward Snowden leaked information on those practices in 2013. Snowden reacted caustically to news of the votes. 

"For the next six years, any unencrypted internet request that even touches a US border will be "ingested" (intercepted) and parsed by NSA," Snowden wrote in his Twitter feed

But some are buckling down to fight the continued use of Section 702 as it's currently written. The American Civil Liberties Union, for instance, suggested that it would not sit idly as Congress turns its back on the American people by failing to ensure that intelligence agencies are guided by the Fourth Amendment. 

"The ACLU is currently challenging warrantless surveillance under Section 702 and will continue to fight this unlawful surveillance in the courts," the ACLU wrote via its Twitter feed. "We will use every tool at our disposal to stop the continued abuse of these spying powers." 

As the bipartisan nature of those who opposed extending Section 702 without new limits indicates, the debate over NSA surveillance practices has been far from a party-line issue, with congressional leaders from both parties crossing the aisles. And those who supported extending the law as it's written made it clear that doing so was in the interests of national security. 

"The house of representatives has taken a big step to ensure the continuation of one of the intelligence community's most vital tools for tracking foreign terrorists," Rep. David Nunez, R-Calif., and head of the House Intelligence Committee, told the New York Times. 

Similarly, Rep. Adam B. Schiff, D-Calif., and the ranking Democrat in the House Intelligence Committee, told the Times that the House had avoided "a crippling requirement in national security and terrorism cases." 

The legislation awaits the approval of President Trump, but given that he has made comments on Twitter that call into question exactly where he stands on the issue, whether Trump will sign off on the law or veto it remains to be seen.

Tony Kontzer

, RSA Conference



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