Tapped Out

January 7, 2013

by E. Sebastian Arduengo

In the fall, the House of Representatives voted to pass the FISA Amendments Act 2012 reauthorization. The bill, which renews provisions of the Foreign Intelligence Surveillance Act, allows the government to eavesdrop on Americans’ electronic communications, including phone calls and emails without having to show probable cause. Despite the fact that the bill flew in the face of Fourth Amendment protection, the bill cleared the Republican-controlled House by a large margin, passing 301-118. Members like Trey Gowdy (R- S.C.) rationalized trampling on constitutional by declaring “Intelligence is the lifeblood of our ability to defend ourselves … Are we to believe that the Fourth Amendment applies to the entire world?” For much of the last two months, the matching bill in the Senate was held by Sen. Ron Wyden (D-Ore.), who insisted that the Obama administration release information about how many Americans’ communications have been released under the law. Unfortunately, on Dec. 28, the Senate voted to pass the FISA Amendments Act 73-23, after voting down Senator Wyden’s amendment forcing disclosure.

Senator Wyden’s amendment was of particular import because FISA Amendments Act gives the government nearly limitless spying power. For example, a request related to the “Haqqani network” allows the government to tap any communications it believes will yield information about the group that is fighting American forces in Afghanistan. The request could be based on as little as the vague belief that a phone is being used to communicate with Afghan insurgents. This casts a net so broad, that when a challenge to the FISA Amendments Act went before the Supreme Court in October, ACLU deputy director Jameel Jaffer described the law to Justice Ginsburg as "dragnet surveillance."

Perhaps a better term would be “siphon surveillance,” as documents provided by former AT&T and NSA employees show that the NSA has created dark rooms in AT&T facilities that copy all internet traffic flowing through the facilities and transmit that information to government servers. So much information is flowing to the NSA, in fact, that they are hard at work building a $2 billion data center in the Utah desert to store it all. To put this amount of data this facility will be able to store in perspective – When it is running at full capacity, it will be able to store “about 500 quintillion (500,000,000,000,000,000,000) pages of text.” Unsurprisingly, with the data spigot on, there have been numerous documented reports of the NSA collecting purely domestic communications of ordinary Americans, and collection practices have gotten so egregious that the Foreign Intelligence Surveillance Court, which usually rubber-stamps wiretap requests from the government, ruled that the government’s actions under FISA had violated the Fourth Amendment on at least one occasion.

In the face of all of this, the intelligence establishment has responded to Senator Wyden’s requests for disclosure by preposterously claiming that it would be a further violation of Americans’ privacy if it were disclosed how the NSA was using their information. When Congress reconvened after the holidays, the Senate reconsidered the bill without substantial modifications to protect privacy, or at least meaningful disclosure to let Americans know when their communications are intercepted by the government. Worse, the reauthorization extends another five years, blocking any real debate about the wisdom of warrantless government surveillance of ordinary Americans until 2017.

President Obama signed the legislation soon after passage, and the administration claims that it has created a “legal structure” and “procedural safeguards” to protect the privacy of ordinary Americans.

But, even with safeguards, the FISA Amendments Act is one of those awful pieces of legislation that Senate procedural tactics like the blanket hold are supposed to stop, and Senator Wyden should be commended for using it to get answers for the American people about what the government is doing with their intercepted communications, and for stalling it as long as he did.