The FISA Debate Proves That Congress Doesn’t Care About Your PrivacyBy: Zach Walton - December 31, 2012
Online privacy was a big ticket item in 2012. More and more people are becoming concerned with just how much of their personal lives are available online for everyone to see. In fact, there’s been a push to adopt certain standards like Do Not Track to better protect the privacy of those who use the Internet day in and day out. Of course, in the end, none of that matters.
You see, there’s a bill currently up for renewal in Congress that doesn’t care one little bit about your privacy. In fact, it revels in the idea that the Fourth Amendment, which protects against unwarranted search and seizure, doesn’t apply to online communication. Now this bill – FISA – is going to be renewed for 2013, and there’s next to nothing you can do about it.
Should the Fourth Amendment apply to online communications? Let us know in the comments.
For a bit of background, FISA, or the Foreign Intelligence Surveillance Act, is a bill that was enacted on October 25, 1978. The initial intent of the bill was to outline the powers of domestic spy agencies when collecting information, both physical and digital, on foreign powers. The bill limited the power of spy agencies to collect information on Americans, but all of that changed with the Patriot Act of 2001 and the Protect America Act of 2007.
Since the expansion of the bill, many people have come to question the true intention of FISA. Some argue that it’s being used to collect information on Americans without a warrant while others argue that’s an important tool in stopping terrorism. Both sides in the argument are right in their own ways, but there are important concerns that FISA needs to address in the digital age.
Senators brought forth a number of amendments that would directly address these concerns by making FISA more transparent while protecting the privacy of Americans. Sen. Ron Wyden, friend of the Internet, brought forth an amendment that would make the NSA more transparent on how many Americans have been impacted thus far by the warrantless spying program. For their part, the agency claims that there’s no domestic spying program in place, but NSA whistleblowers insist that there is.
Another amendment was brought forth by Sen. Rand Paul. He calls it the “Fourth Amendment Protection Act.” The amendment would bring Fourth Amendment protections into the digital age as it would protect Americans from having their data pilfered from third parties like telecoms and email providers. Here’s the relevant text from The New American:
(a) Except as provided for in subsection (b), the government is prohibited from obtaining or seeking to obtain information related to a person or group of persons held by a third-party in a system of records, and no such information or evidence shall be deemed admissible in a criminal prosecution in a court of law.
(1) “System of records” shall be defined as any group of records from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular associated with the individual.
(b) The government may obtain, and a court may deem admissible, information or evidence related to a person held by a third-party in a system of records provided that:
(1) The individual whose name or identification information the government is using to access the information provides express and informed consent to that search; or
(2) The government obtains a Warrant, upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In short, Paul’s bill would extend Fourth Amendment protections to things that you “own” in the digital space. Those in law have battled over this issue with some agreeing that things you create online, even status updates and emails, are yours; while others argue that a person has no ownership over something like a “Tweet.”
Sen. Jeff Merkley proposed an amendment that would make the government release opinions from the secret FISA court that decides on who can be wiretapped and who can’t. Not all rulings would be made transparent, but rather only those that contain important interpretations of FISA so Americans can know how the government is using FISA.
Finally, Sen. Patrick Leahy, sponsor of the pro-privacy ECPA update, proposed an amendment that would sunset the privacy infringing amendments to FISA after four years. The current renewal up for debate would add five more years onto the amendments, while Leahy’s amendment would decrease that time for three years. It’s not a major improvement, but at least it’s something.
Do you think these amendments are good additions to FISA? Should any of them be seriously considered? Let us know in the comments.
Despite their good intentions, none of these amendments will make into the final FISA. The EFF reports that the Senate systematically shot down every one of the amendments on Thursday night. In fact, the amendments were rejected by an overwhelming number of senators on both sides of aisle.
The Hill reports that Senate Intelligence Committee Chairwoman Dianne Feinstein disregarded many of the amendments claiming that FISA is already subject to “rigorous oversight.” Wyden responded by saying:
“I think, when you talk about oversight, and you can’t even get a rough estimate of how many law-abiding Americans had their communications swept up by this law … the idea of robust oversight, really ought to be called toothless oversight if you don’t have that kind of information.”
Feinstein argued back that she has never sen “a government official engaged in a willful effort to circumvent or violate the law” during her time on the Intelligence Committee. She did, however, state that there have been a “few incidents of non-compliance,” but she chalked those up to “human error or technical defect.”
Putting the final nail in the argument’s coffin, Feinstein pulled out the terrorism card to support the need for an unamended FISA going forward. She said that there have been over 100 arrests of terrorists over the past four years, and said that a number of those arrests were the direct result of surveillance under FISA. To change the way intelligence is gathered would presumably open the U.S. to more attacks.
It should be noted that FISA is just one part of the digital privacy landscape. The Senate has already approved ECPA, or the Electronics Communications Privacy Act. The bill would require law enforcement to obtain a warrant when collecting emails of domestic citizens. The bill would do nothing, however, if the email was sent from a U.S. citizen to a friend overseas. The NSA has jurisdiction over that and FISA allows them to gather all that information without a shred of transparency. If you believe whistleblowers, the spy agency is even collecting emails sent to friends in the U.S.
FISA was pushed through Friday in an effort to quickly pass the bill before the bill expired on Dec. 31. The amendments were most likely rejected as the majority of Congress is too focused on the current fiscal cliff negotiations instead of debating a privacy bill.
Regardless, there will come a time when digital privacy needs to be debated. It should have happened during the FISA debate, but now it must wait until another chance arises. 2013 may just prove to be that chance as more privacy infringing bills will undoubtedly pop up.
Do you think online privacy is an important issue? Should Congress take it up again in the near future? Let us know in the comments.