Warrantless surveillance

constitution

Rep. Justin Amash (R-MI) writes:

On Thursday, the U.S. House of Representatives will take two extremely important votes related to something called #FISA702, which is a section of foreign intelligence surveillance law.

One vote will be on passage of a bill, #S139, that allows the government to apply foreign intelligence surveillance tools to warrantlessly collect, search, and use data on every American. This bill violates the #4thAmendment, which says that our right to be secure against unreasonable searches and seizures shall not be violated. The Fourth Amendment requires the government to obtain a particularized warrant based upon probable cause, but S 139 ignores these restrictions.

Before we vote on S 139, we will vote on my amendment to replace the bill with another bill called the #USARIGHTSAct. The USA RIGHTS Act was introduced in the Senate by Democratic Sen. Ron Wyden and Republican Sen. Rand Paul, and it was introduced in the House by Democratic Rep. Zoe Lofgren and Republican Rep. Ted Poe. I’m offering this bill as an amendment because it protects Americans from warrantless spying, while allowing the government to continue using its surveillance program for foreign intelligence purposes.

More than 40 colleagues have cosponsored my amendment—a list that includes a broad mix of Republicans and Democrats: Lofgren (CA), Poe (TX), Polis (CO), Meadows (NC), Gabbard (HI), Jones (NC), Rohrabacher (CA), Massie (KY), Biggs (AZ), Davidson (OH), Sanford (SC), Pearce (NM), Perry (PA), Mooney (WV), Gosar (AZ), Schweikert (AZ), Gohmert (TX), Yoho (FL), Barton (TX), Brat (VA), Doggett (TX), Blum (IA), Garrett (VA), Griffith (VA), Jordan (OH), Labrador (ID), Blumenauer (OR), Khanna (CA), O’Rourke (TX), Ellison (MN), Rokita (IN), Farenthold (TX), Pocan (WI), Grijalva (AZ), Welch (VT), McClintock (CA), Carbajal (CA), Jackson Lee (TX), Lieu (CA), Bobby Scott (VA), Jayapal (WA), Jody Hice (GA). A typical amendment gets only a few cosponsors at best, but this will be a very consequential vote.

As I said on Tuesday at a committee meeting, it’s our job as a Congress to support and defend the Constitution. We swear an oath to do so. It’s our job to protect the rights of the people we represent. That is the primary purpose of government.

I’m so grateful to the many Democrats and Republicans who are standing up for the American people on this issue. We must do everything we can to pass the USA RIGHTS Act Amendment and to defeat S 139. There’s still time for you to share your opinion with your representative. I’m confident we can add a lot of allies before the vote. 

 

Information is available on the internet. I haven’t provided any links because the bill numbers are muddled by legislative trickery so I am not sure what to trust. It will be interesting to see what happens tomorrow.

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About whungerford

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11 Responses to Warrantless surveillance

  1. josephurban says:

    Seems to me that some of the folks who worry about “privacy” are the same ones who demanded and got thousands of emails of their poitical opponents. (Clinton emails) Hmmm…
    Does the government have a legitimate reason to collect information on US citizens who are actively engaged in communication with foreign agents who intend harm to the US? In other words, if Mr. A in Syria is known to be an active member of a terror group and Mr A has regular phone calls with Mr B in Sacramento, does the government have a legitimate interest to discover what those converations are about? If Mr C is a known money launderer from Russia and he has regular contact with Mr D in New York city, does the government have a legitimate reason to discover what those convertions are involved with?
    My understanding of the FISA warrrants is that they involve foreign people, who are not covered by the US Constitution.If a US citizen is actively engaged with a foreigner who the US has evidence is involved in illegal activity, does it not make sense that the government has a legitimate need to investigate that relationship?
    Regarding the 4th amendment. Does that right not presuppose that a person is NOT engaged in illegal activity? Or was the 4th amendment designed to allow criminals to hide illegal activity? For example: To what extent does my right to privacy extend to legally hiding the fact that I murdered someone? Can I claim that my rights have been violated if I commit a crime in my home and the police find out that fact?
    Bottom line. We need to balance the legitimate right for privacy with the need and responsiblity for the government to keep us safe from bad actors. If a person is in regulalr contact with foreigners who are terrorists or criminals does the 4th amendment shield him from a reasonable government search? The key word is “reasonable.

    Liked by 1 person

  2. whungerford says:

    For me the issue isn’t privacy but procedure. If invasion of privacy is a search, is it unreasonable for the government to seek a warrant?

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  3. whungerford says:

    The original text of S.139 was replaced with the House Intelligence committee’s text reauthorizing FISA. Rep. Amash’s amendment failed 183-233. A motion to recommit with instructions failed 189-227. The bill passed 256-164. Rep. Reed voted against the Amash amendment, against the motion to recommit, and for passage.

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  4. josephurban says:

    Bill. I think the government does get a warrant through the FISA process, unless I am not understanding the current process. They have to go before a FISA court judge with probable cause and obtain a warrant. There may be circumstances where there is no time for a warrant, but I am not aware of any cases and that would not be legal under FISA.
    As long as they have probable cause and a judge signs off, I see no problem.

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  5. whungerford says:

    Per Rep. Amash: The Fourth Amendment requires the government to obtain a particularized warrant based upon probable cause, but S 139 ignores these restrictions.

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  6. josephurban says:

    FISA Section 702 applies to collecting intelligence on foreigners. It does not apply to collecting intelligence on US citizens, except in cases where those citizens are in contact with foreigners. US citizens are protected by the 4th amendment, FISA does not end that protection.

    https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf

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  7. josephurban says:

    Like all issues there are a variety of sides to the debate. From what I have gathered from various sources, the key objection to the FISA warrant is that US citizens who break the law may be discovered under the FISA warrant. Then, even though law enforcement did not have a warrant for them, the police could use that information to prosecute them for crimes here in the USA. Any data collected, however, without a legitimate warrant would be inadmissable in a court. And any leads derived from that warrant for crimes not part of the FISA investigation would also be tainted, and thus inadmissable. So, I don’t see what the big problem is.

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  8. whungerford says:

    I agree that there are various perspectives on this; here is another:
    https://www.aclu.org/why-fisa-amendments-act-unconstitutional

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  9. whungerford says:

    Rep. Capuano (D-MA) on FISA:

    Surveillance Concerns

    On Thursday the House considered S. 139, the FISA Amendments Reauthorization Act of 2017. This legislation reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) for six years, which expires on the 19th. The FISA Act became law in 1978 and gave the federal government some tools, with judicial oversight, to conduct surveillance. It has been amended a number of times. Section 702 of FISA gives the federal government the authority to conduct surveillance on foreign targets who are not on U.S. soil if the intelligence community obtains an order from a FISA court. I have long been concerned about the unintended consequences and scope of the FISA Act. While I understand that the intelligence community requires surveillance tools, there are not enough privacy protections included in this reauthorization. For example, S. 139 gives law enforcement access to the data collected but the standards for determining if access is warranted are not sufficient to prevent foreseeable abuses. I also remain concerned about the impact of this law on the privacy of American citizens, who could be caught up in surveillance activity. I voted NO.

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  10. josephurban says:

    I don’t necessarily disagree with Capuano. However, when looking at his Issues page on his website, dealing with this issue, he says:
    “I opposed the FISA Amendments Act of 2008, which passed the House by a narrow margin of 213-197. The original FISA legislation permitted wire-tapping with warrants obtained from judges in special courts who could examine evidence in camera, that is, in secret, if national security might be compromised by a discussion in open court. The new bill failed, in my opinion, to protect our citizens from unconstitutional intrusions, and although it made some improvements, I could not support it. I believe that individual liberty and the constitutional separation of powers both demand warrants authorizing surveillance.”
    He never says what he wants to do to make the bill better. He says he does not think it goes far enough to protect individuals, but offers no solutions (at least on his website).
    What are the standards he wants to apply to US citizens if they are inadvertantly caught in a legal warrant communicating with an agent of a foreign power under surveilance? In other words, should that portion of the communication be ignored? Should the citizen be notified by the government that they have been inadvertantly caught in the surveillance? For example, if a known member of a terrorist organization is having regular phone calls with a US citizen, should that citizen be notified he is under observation? Wouldn’t that notification help the terrorists? Is he calling for a warrant (other than FISA) for every communication intercepted between a foreign terrorist and a US citizen?
    From his website I cannot tell exactly what kind of protections Capuano wants to employ.

    http://capuano.house.gov/issues/mikeon_civilliberties.shtml

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