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Momentum Against FISA Surveillance Grows as 12 Senators Send Letter of Opposition

As you may know, eight days ago Director of National Intelligence James Clapper acknowledged to Senator Ron Wyden that the actions of the government to spy on Americans had exceeded the limits set by the FISA Amendments Act and the United States Constitution.

At the beginning of the summer, only Senator Wyden was willing to block a five-year reauthorization of the FISA Amendments Act, using procedure to gum up an unrecorded voice-vote approval of S. 3276. Wyden insisted that Director Clapper inform the Senate and the public of unconstitutional activities. Now that Senator Wyden has obtained confirmation of ongoing government surveillance under the Obama administration, bipartisan momentum has been growing for a pause and for further investigation. On Thursday July 26, Wyden was joined in a coalition of 12 Senators to write a (9 Democrats, 2 Republicans and 1 Independent) letter to Clapper (read here) that notes the following pieces of information:

The central provision of the FISA Amendments Act (which is now section 702 of the FISA statute) gave the government new authorities to collect the communications of people reasonably believed to be foreigners outside the United States. Because section 702 does not involve obtaining individual warrants, it is incumbent upon Congress to ensure that the government does not use these new authorities to deliberately spy on American citizens.

We are concerned that Congress and the public do not currently have a full understanding of the impact that this law has had on the privacy of law-abiding Americans. In particular, we are alarmed that the intelligence community has stated that “it is not reasonably possible to identify the number of people located inside the United States whose communications may have been reviewed” under the FISA Amendments Act. We understand that it might not be possible for the intelligence community to calculate this number with precision, but it is difficult for us to accept the assertion that it is not possible to come up with even a rough estimate of this number. If generating a precise estimate would require an inordinate amount of labor, we would be willing to accept an imprecise one. We are not prepared, however, to dismiss questions about how many Americans have had their phone calls or emails collected as trivial or unimportant.

As we have considered the FISA Amendments Act, we have also become increasingly concerned about an apparent loophole in the law that could allow the government to effectively conduct warrantless searches for Americans’ communications. If, as we have noted, the intelligence community has not even estimated how many Americans have had their communications collected under section 702, then it is possible that this number could be quite large.

… and that formally opposes reauthorization of the FISA Amendments Act until the following questions are answered:

Have any entities made any estimates – even imprecise estimates – about how many US communications have been collected under section 702 authorities?

Is it possible for the intelligence community to estimate the order of magnitude of this number? (For example, is it closer to 100, or 100,000, or 100 million?)

To your knowledge, have any wholly domestic communications been collected under section 702 authorities? If so, can you estimate how many?

Since the FISA Amendments Act does not prohibit searching communications collected under section 702 to find the communications of particular Americans, has the government attempted to search for the communications of specific Americans without a warrant or emergency authorization?

We ask that you provide unclassified answers to these questions, so that Congress and the public can have an informed debate about whether privacy protections in the FISA Amendments Act are adequate or need to be strengthened.

The following 12 Senators are to be commended for signing their names to this letter:

Ron Wyden
Mike Lee
Rand Paul
Mark Begich
Jon Tester
Tom Udall
Maria Cantwell

Mark Udall
Jeff Merkley
Chris Coons
Jeff Bingaman
Bernie Sanders
Dick Durbin

If you live in either New Mexico or Oregon and you find both of your Senators’ names in this list, that’s wonderful. But if like most Americans you don’t find both of your Senators’ names on this list, don’t let disappointment suffice. Don’t stop at mere outrage. Call the U.S. Congressional Switchboard at 202-224-3121, get in touch with your laggard Senators, and tell them it’s time to ACTIVELY OPPOSE S. 3276.

The American people have the right to know when they’re being spied upon outside the law. The American people should expect their Senators to stop it.

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