December 19, 2012
You will soon be asked to vote on extension of the FISA Amendments Act (FAA), which is set to expire on December 31st. This past fall, The Constitution Project's bipartisan Liberty and Security Committee released a Report on the FISA Amendments Act of 2008, urging a variety of reforms to the law in order to ensure that the FAA surveillance program incorporates strong privacy safeguards to avoid intrusions on Fourth Amendment rights. As outlined in that report, a straight reauthorization of the FAA would threaten Americans' constitutional rights, and we urge you to vote in favor of critical privacy amendments to the Act.
At present, under the FAA, the government may legally conduct broad scale foreign intelligence surveillance without obtaining any warrant, not even one from the secret Foreign Intelligence Surveillance Court (FISC), and the judicial review that the FISC must conduct under the FAA is minimal. As we explain in a recent blog post, as long as the target of FAA surveillance is located abroad and is not a U.S. citizen or legal U.S. resident, nothing in the law prevents the collection of communications where an American or someone located in the United States is on the other end of the conversation. Then, once the government has collected such communications, there are almost no limits on how it may use this database of information, thereby allowing "back door searches" of Americans' communications without a warrant. In addition, very little information has been provided to the public about how the government has actually used this surveillance authority or the extent to which communications involving an American on one end have been "incidentally" intercepted.
It is unfortunate that consideration of extending the FAA has been left to the waning days of the congressional lame duck session, making a full and robust debate of these surveillance authorities unlikely. But, at a minimum, the Senate should debate and approve critical privacy-protective amendments, including one to prevent back door searches and several others being offered to strengthen the safeguards for our constitutional rights.
Sharon Bradford Franklin
The Constitution Project