One of our essential liberties is keeping our private matters safe from the snooping eyes of the government. It’s enshrined in the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
At issue in Congress is the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. Because communications in foreign countries are not protected by the Fourth Amendment, FISA allows broad intercepts of communications involving people in other countries. In the digital age, however, the communications of Americans can easily be swept up in government intercepts of communications involving people in other countries.
Unfortunately the U.S. House of Representatives failed to affirm Fourth Amendment protections for American communications by defeating an amendment to mandate getting a warrant when the government uses FISA to spy on Americans. The vote was 212-212. Mainly it was Democrats who voted against the protections, with 84 in favor and 126 against; while Republicans mostly favored the protections, 128-86.
With the defeat of those protections, the House overwhelmingly voted to pass the reauthorization by a bipartisan vote of 273 to 147. President Joe Biden pushed for the reauthorization. Presumptive Republican presidential nominee Donald Trump opposed it, claiming FISA was used by the government to spy on him during his presidential campaign.
Biden’s National Security Adviser, Jake Sullivan, hailed the vote as ensuring the intelligence community has the tools to protect Americans against “hostile nation states, terrorist organizations, hackers, spies, and more.”
This enthusiasm wasn’t shared by the members of Congress who seem at least vaguely familiar with the Bill of Rights.
“This is a sad day for America,” lamented Rep. Tom Massie, R-Kentucky, who backed a warrant requirement. Rep. Jerry Nadler, D-New York, explained that when the government searches what’s called the 702 database for Americans’ communications, it’s “the constitutional equivalent of conducting a warrantless search.” He further noted that’s happened “278,000 times, in fact, at last count, in 2021 alone.”
Reauthorization of Section 702 as currently written, if passed by the Senate, actually would be worse than current law. Warned Patrick G. Eddington of the libertarian Cato Institute, “The clear expansion of FISA surveillance this bill represents virtually guarantees additional abuses of the constitutional rights of Americans.”
Among local representatives, votes against the warrant requirement and for reauthorization came from Republicans like Young Kim, Ken Calvert, Jay Obernolte and Mike Garcia, along with Democrats like Pete Aguilar, Linda Sanchez, Lou Correa, Adam Schiff and Mike Levin.
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Democratic Reps. Katie Porter, Robert Garcia and Judy Chu, to their credit, favored a warrant requirement and voted against the final bill. And Steel did vote for a warrant requirement, but chose to vote in favor of reauthorization without it.
We expect our representatives to take special care in protecting the constitutional rights of Americans. Except for a few, they have failed to do so and have instead chosen to trample over the Fourth Amendment.
The Senate is expected to act soon. They probably won’t, but they ought to listen to colleague Sen. Ron Wyden, D-Oregon, who said, “The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history.”