Policy & Law
In a 301 to 118 decision, the US House of Representatives has voted in favor of the FISA Amendments Act Reauthorization Act of 2012, a bill which will extend the US government's previously established warrantless wiretapping programs for the next five years. The bill preserves far-reaching and highly controversial enhancements to government surveillance powers granted under amendments to the Foreign Intelligence Surveillance Act (FISA) in 2008, and has been met with considerable resistance from privacy groups and members of Congress on both sides of the aisle.
FISA was originally tasked with preventing American citizens from being spied on in 1978 following a scandal that found Richard Nixon's administration using US intelligence agencies to target activists and political opponents. But those protections have since been severely eroded, first by the USA Patriot Act in 2001, and again by the FISA Amendments Act of 2008, greatly expanding government surveillance powers to allow warrantless wiretapping of phone, email, and other communications.
"The American people deserve better."
"Many U.S. citizens, and others who have nothing to do with foreign intelligence gathering, are caught up in this surveillance, and government has an obligation to protect their rights," said New York Congressman Jerrold Nadler, one of the bill's opponents. "The American people deserve better, and Congress has an obligation to exert more control over spy agencies than simply to give them a blank check for another five years."
The bill's supporters, on the other hand, continue to fervently insist that the spying powers are essential to defend the US from terrorist threats. "Foreign terrorists continue to search for new ways to attack America," said Rep. Lamar Smith, whom you may remember as the prime sponsor of SOPA.
The only form of oversight for these surveillance activities exists in the form of a secret judicial body known as a FISA court. The problem is it's impossible to know how effective these courts actually are; all of their activities are obscured from both the public and members of Congress, thereby severely impairing any attempts to criticize the law.
"They took those systems that I built and they turned them on you, and I'm sorry about that."
In July, a declassified document requested by Senator Ron Wyden of Oregon revealed that "on at least one occasion," the FISA courts found that the NSA's intelligence-gathering efforts had caught an American citizen in its dragnet, violating Fourth Amendment rights against search and seizure.
William Binney, a former NSA codebreaker who helped expose the US government's extensive surveillance activities, has been especially vocal on the matter. He left the NSA in 2001, after observing what he describes as a sharp pivot from foreign intelligence into domestic spying after 9/11. "NSA's charter was to do foreign intelligence, and I was with that all the way," he said during a panel on government surveillance at the Def Con hacking conference in July. "But then they took those systems that I built and they turned them on you, and I'm sorry about that."
"When Al Qaeda calls into America, we should be listening."
But despite opposition, both Presidential candidates have said that they support the bill's warrantless wiretapping powers.
President Obama, who originally opposed provisions which gave retroactive legal immunity to telecommunications companies who assisted in the NSA's then-illegal wiretaps, reversed his decision just prior to the passage of the FISA amendments in 2008. Mitt Romney expressed his unflagging support of the spy bill in 2007, reasoning that "When Al Qaeda calls into America, we should be listening."
If the bill passes in the Senate, it will extend FISA's warrantless wiretapping provisions into 2017. Meanwhile, the Electronic Frontier Foundation has sued the government, demanding that the FISA courts hand over information on how the NSA has been using (and abusing) the law.
"As Congress gears up to reconsider the FAA, the American public needs to know how the law has been misused," said EFF Senior Counsel David Sobel in a statement. "The DOJ should follow the law and release this information to the American public."
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