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Senate Trying To Make Fisa Amendments Act Permanent Without Privacy Oversight

Yesterday, a Republican-only group of U.S. Senators led by Tom Cotton introduced S. 1339, legislation that would make the FISA Amendments Act – Section VII of the Foreign Intelligence Surveillance Act – permanent.

When the FISA Amendments Act was passed in 2008, it was so controversial that it was only able to pass Congress with a sunset provision, a guarantee that it would be automatically removed from the law after just a few years.

What’s so dangerous about the FISA Amendments Act? It radically expands the powers of the federal government, enabling electronic surveillance of private communications without ordinary constitutional protections. The FISA Amendments Act creates a back-door method for US spy agencies to gather personal information about the private communications of citizens in the United States without a search warrant by targeting the communications of foreigners they are known to be in touch with. The FISA Amendments Act only requires information about non-Americans to be one of many purposes of surveillance. The law allows US spy agencies to also have the purpose of using the law to gather information on Americans.

For this reason, the FISA Amendments Act is a tool that seems designed to violate Americans’ Fourth Amendment right to protection from unreasonable search and seizure.

One of the better features of the FISA Amendments Act that has been used to justify its extreme powers is its creation of a Privacy and Civil Liberties Oversight Board that is given the responsibility of conducting advice and oversight, ensuring that the use of the FISA Amendments Act focuses on foreign security threats, and isn’t used to undermine Americans’ civil liberties. Fans of the FISA Amendments Act say that Americans don’t need to worry, because the Privacy and Civil Liberties Oversight Board will prevent abuse of the law’s surveillance powers.

There’s one big problem with this justification: For most of the time that the FISA Amendments Act has been in effect, the Privacy and Civil Liberties Oversight Board has purposefully been prevented from doing its job. Don’t take my word for it. The Privacy and Civil Liberties Oversight Board itself admits that, “until August 2012, the Privacy and Civil Liberties Oversight Board did not exist.”

George W. Bush and Barack Obama didn’t want the Privacy and Civil Liberties Oversight Board to do its work, and so, for a long time, they simply didn’t nominate anyone to sit on the Privacy and Civil Liberties Oversight Board. Then, they nominated people friendly to U.S. spy agencies (some were advocates for extreme government surveillance powers, and 3 out of the 5 nominees were staff members for the pro-surveillance lobbying firm WilmerHale) but the Senate, loathe to allow anything negative to be said about the FISA Amendments Act that it had passed, slowed down the confirmation process for Board members.

Even after a quorum of four out of five members were confirmed to the Privacy and Civil Liberties Oversight Board by the Senate, the board lacked a chair, and so could not hire the staff necessary for the board to actually do its work. It wasn’t until the middle of 2013 – five years after the passage of the FISA Amendments Act that the Privacy and Civil Liberties Oversight Board could begin its work.

Three years later, the Privacy and Civil Liberties Oversight Board began to shut down, as its members stopped doing their work, and started to quit, leaving their positions vacant. As of this spring, the Privacy and Civil Liberties Oversign Board once again had no chair, and had only one member.

Donald Trump has not nominated anyone to fill these vacancies.

Privacy and Civil Liberties Oversight Board defunct

The Privacy and Civil Liberties Oversight Board is non-operational. In effect, the board does not exist. The federal government’s spy agencies are now being allowed to use the extreme powers of the FISA Amendments Act however they want, without any independent oversight.

It is in this context, as Section VII of FISA – the FISA Amendments Act – is being run without any privacy oversight at all, that Senator Tom Cotton and his cadre of Republican followers are suggesting that the FISA Amendments Act be made permanent. S. 1339 would remove the sunset provision of the FISA Amendments Act, and make sure that the extreme electronic surveillance powers established as a temporary measure in 2008 will never go away.

It’s not reasonable to ask that the FISA Amendments Act be permanently inflicted when the body that is supposed to have been conducting oversight of the spying law has been systematically prevented from doing its job. But then, as the continuing support of Donald Trump by Senate Republicans shows, we are not living in reasonable times.

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