On December 31, 2017, Section 702 of the Foreign Intelligence Surveillance Act that allows US spy organizations to track internet communications and content of American citizens, will automatically expire unless renewed by Congress.
Opponents of Section 702 claim that it is a gross violation of the Fourth Amendment, the law that protects citizens’ privacy and prevents “unreasonable searches and seizures” by the government. This camp demands that if FISA is not allowed to die, at the very least, it must be changed drastically to ensure that Americans do not have their rights routinely violated as a result of its reauthorization. What was enacted in an effort to collect intelligence on foreign threats, they say, is now being used to primarily target US citizens.
Supporters, including top cabinet members, have stated that the provision is vital for the government to maintain effective intelligence collection. Attorney General Jeff Sessions and Director of National Intelligence Dan Coats, for instance, sent a letter to Congress not too long ago supporting a “clean and permanent” reauthorization of the Foreign Intelligence Surveillance Act (FISA) before its expiration.
Similar sentiments have been heard from the US Intelligence Community. Agency heads, including those of the NSA, FBI, and the National Directorate of Intelligence, assert that any major reductions in the authority the provision grants would considerably undermine their intelligence gathering capabilities.
This back and forth can be seen as the latest in the now years old debate of government surveillance needs versus privacy considerations. While 9/11 produced sweeping legislation that granted great power to the intelligence apparatus such as the PATRIOT Act, revelations as to how regular Americans are affected by these laws, not the least of which being the famous leaks orchestrated by Edward Snowden in 2013, led to the introduction and ultimate passage of the USA FREEDOM Act in 2015. While the Act did reaffirm many aspects of PATRIOT, it dissolved its notorious bulk data collection of Americans’ phone records and Internet metadata used by organizations like the NSA to essentially spy on untold numbers of citizens.
Ironically, while Republicans are pushing hard to reinstate the FISA provisions, claims from President Trump that the Obama White House tapped his communications during his presidential campaign have the potential to undermine his own party’s push. This has not been the only shot against the Intelligence Community Trump and his supporters have taken. In July, supporters also accused federal agencies of unfairly targeting the President after reports that communications between him senior officials in his campaign were collected in the context of investigations into Russian interference in the election process. These facts have already been brought up by some observers and may, in fact, be a strong swaying element in influencing policymakers to reaffirm the FISA provisions or allowing them to dissolve.
Take the recent statement by Rep. Chris Stewart (R-Utah), who chairs the House Intelligence Committee’s defense subpanel: “It’s made it harder for us, there’s no doubt about it, if I’m a little conflicted on this, you can imagine what some of the folks are who kind of lean in that direction already. It’s going to make it harder for us.”
What the President is going to have to understand is that he can’t have it both ways. Either he will allow Republican policymakers to effectively push forward FISA for reaffirmation, or help opponents by strengthening the perception of surveillance laws as un-American.