Over the course of two hours last Thursday morning, Donald Trump offered two diametrically opposed takes on a surveillance bill making its way through Congress. Both were wrong.
The FISA Amendments Reauthorization Act of 2017, which the House approved last week and the Senate is considering this week, has nothing to do with purported wiretapping at Trump Tower or any other direct surveillance of the Trump campaign, as the president initially suggested. But neither is its impact limited to "foreign bad guys on foreign land," as Trump said in a corrective tweet after alarmed advisers explained his administration's position to him.
The bill would renew for six years Section 702 of the Foreign Intelligence Surveillance Act, which authorizes warrantless collection of communications between people in the United States and people in other countries when "a significant purpose" of the snooping is obtaining "foreign intelligence information." Although the official target is supposed to be a "non-U.S. person" (i.e., neither a U.S. citizen nor a legal permanent resident) who is believed to be located in a foreign country, the National Security Agency "incidentally" gathers a great deal of information about Americans, including their international emails, chat sessions and phone calls.
Once the information has been collected, the FBI can peruse it at will, looking for evidence of crimes that may have nothing to do with foreign intelligence (itself a very broad category), let alone terrorism or national security. Section 702 thus gives the FBI and other law enforcement agencies a way to dodge the Fourth Amendment's ban on unreasonable searches and seizures, which is generally understood to require a warrant based on probable cause for surveillance that reveals the content of private conversations.
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The bill that the House approved implicitly acknowledges this problem by requiring a warrant to search Section 702 data about Americans -- but only when the FBI is looking for information about someone who is already the target of a criminal investigation (and only when the investigation is not related to national security). Criminal suspects, in other words, would receive more privacy protection than people who the government has no reason to believe have broken the law.
The FISA Amendments Reauthorization Act also opens the door to reviving a suspended program that collected international communications "about" a foreign intelligence target. That kind of surveillance can pick up exchanges where neither party is the target and, due to technical problems in screening out domestic internet traffic, even when both parties are in the United States.
Last week, by a vote of 233 to 183, the House rejected an amendment that would have required a warrant for searches of Section 702 data and for surveillance partly motivated by a desire to collect information about Americans. That amendment, known as the USA RIGHTS Act, also would have explicitly banned "about" surveillance and limited the use of Section 702 information to cases involving foreign intelligence or national security.
The legislators who supported the USA RIGHTS Act included conservative Republicans such as James Sensenbrenner (Wis.) and Ted Poe (Texas) as well as progressive Democrats such as Jared Polis (Colo.) and Barbara Lee (Calif.). They were united by a belief that constitutional rights must be respected even when they inconvenience people who think invoking national security should be the end of the argument.
"Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear," writes Sen. Rand Paul (R-Ky.), who cosponsored the USA RIGHTS Act in the Senate and has vowed to fight reauthorization of Section 702 without reforms. "The Founders did not include the Fourth Amendment in the Bill of Rights as a suggestion."
When the president thought Section 702 was used to "badly surveil and abuse the Trump Campaign," he was indignant. If only he could spare some of that passion for a principle that protects the privacy of all Americans.
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