U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of “non-U.S. persons” who are outside the U.S., even though this law sidesteps the Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.
How many American citizens is the government listening in on? We don’t know, as the intelligence agencies told Congress they can’t say just how many American citizens they’ve eavesdropped on (without warrants).
Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.
Congress would probably do this too if it wasn’t for the fact that they’ve recently learned their privacy is also at stake. Recent “unmaskings” show that even a congressman’s conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didn’t do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.
“We cannot live in fear of our own intelligence community,” said Sen. Rand Paul (R-KY). “They have such power to suck up every bit of every transmission, every communication we ever made. We can’t just have them willy-nilly releasing that to the public.”
In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), aren’t so keen about what this law can do to them. They’ve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges.
Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.
All of this is very new and confusing to our politicians. But, as fiction can gaze just beyond the headlines to show us where we are going and how we might keep our freedom in this changing world, my novel Kill Big Brother takes this plot to its dramatic end. What I found while researching and writing the book is there are ways to keep our intelligence agencies strong enough to protect us while keeping our freedom.
This begins with enforcing a change in mindset. Too often our intelligence agencies, as law enforcement will, have their eyes so fixed on the problems—terrorism, ransomware wielded by criminal syndicates…—they lose sight of the freedom they are supposed to be protecting.
So what should Congress do with Section 702 of the FISA Amendments Act?
First, they shouldn’t make it permanent law, as Congress needs to revisit this issue periodically as events and technology change.
Next, Congress should require the intelligence agencies to report by specified dates how many U.S. citizens have been listened to or have had their emails viewed as a result of this provision in the law—and not just general numbers, but real data. The law sunsets in December, so Congress should use this deadline to pressure the intelligence community to get these answers now.
Congress should then update the law by setting up a legal apparatus that will help to quickly, in this modern world, give the NSA and more the ability to get approval or to, in some cases, get approval within a certain time period after the fact for listening in on communications that might include U.S. citizens. Yes, this means stripping away the NSA’s ability to listen away with no checks or balances from Congress or the courts. The Fourth Amendment protections need to be respected. If technology makes it possible for the NSA to listen in on conversations, then the NSA, with all of its vast resources, can propose ways for technology to help create a fast approval and oversight process.
Civil libertarians shouldn’t forget that U.S. intelligence agencies have an almost impossible task. They have to find terrorists and others who are plotting to do us harm in an age when encryption and other technologies allow even unsophisticated criminals to hide their communications. But then, history is also a teacher here—simply empowering secretive government organizations can lead to some undesirable places.
Also, encryption and other technologies have become an important part of modern commerce. There is no turning back the clock. What it comes down to is that good police work is called for, not broad new powers for a Big Brother state.
Few Americans now know that under Section 702 the FISA Amendments Act the government now collects millions of communications annually from American citizens, according to research done by The Washington Post. Part of the way the NSA does this is by temporarily copying internet traffic going in and out of the U.S. As a result, they are copying and potentially searching emails between journalists and their sources, communications protected by attorney-client privilege, and lawful conversations elected officials are having with foreigners.
Just imagine if a new Edward Snowden leaked this data, information that currently can be used in domestic criminal and civil proceedings, without a warrant. Our right to communicate privately, via Fourth Amendment protections, is paramount to our freedom; also, the First Amendment right to free speech is dampened by this lack of privacy. The U.S. intelligence agencies should be reminded that telling us to give up what they are supposed to be protecting also kills our liberty.
Frank Miniter is the author of Kill Big Brother, a novel that shows how we can keep our freedom in this digital age.