On Thursday, the Senate passed a six-year extension to renew a controversial set of invasive, and arguably unconstitutional, surveillance methods — allowing President Donald Trump's intelligence agencies to continue widespread surveillance measures. The measure passed by a 65-34 margin, days after lawmakers on both sides of the aisle rejected bipartisan concerns and proposals that would have overhauled privacy protections for Americans.
The FISA provision, known as Section 702, allows for forms of warrantless wiretapping — primarily around content collection, along with some metadata collection. In simple terms, it means that the contents of Americans' phone records, text messages, and emails with people abroad could be collected incidentally and without warrant.
"You can use Section 702 to target foreigners abroad if they [contain] anything that could affect U.S. foreign affairs — whether that's an international business person, an environmental, political or religious activist, a professor or scientist, a journalist," Robyn Greene, the policy counsel and government affairs lead at New America's Open Technology Institute, told Salon. But government is able to "have its cake and eat it too," Greene said, because the government has said that warrantless searches were valuable without ever admitting, in court, how they've helped.
The bill has been marketed by lawmakers on both sides of the aisle as an essential tool for U.S. counterterrorism operations abroad. Senate Majority Leader Mitch McConnell, R-Ky., said on the Senate floor that Section 702 "remains one the most important tools that our national security professionals use to combat terrorism and to keep Americans safe." The tools include a "catch-all bucket of information," Greene said, that's rather broad.
The National Security Agency can access raw Section 702 data — unminimized and unreviewed — while other agencies are able to access some information. Politico noted:
The final bill requires the FBI to seek a warrant only after it reaches the “predicative” — or last — stage before a formal investigation begins. Officials from agencies can still sift through the massive database for information on Americans without a warrant — a practice privacy advocates call "backdoor searches” — and use the information gleaned to build their cases in non-national security matters. Privacy advocates had been seeking a stricter warrant requirement that would have covered all agencies and any attempt to even search the 702 database for details on Americans.
But, Greene said that "any number of people who are not engaged in any kind of wrongdoing could potentially be targeted under Section 702 because they may possess foreign intelligence information. Similarly, even when the purpose of the investigation is to collect information on terrorists or spies, it's not necessarily the case that only terrorists and spies are being targeted; it could be people that happen to have information about them. And there are many non-nefarious reasons a person might have information like that . . . a journalist would be a great example of that."
NSA whistleblower Edward Snowden, who exposed the agency's sweeping surveillance powers, has also joined that sentiment, along with many other privacy advocates.
Surveillance issues often forge improbable friendships in Congress. Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., hardly find themselves in agreement on other issues. But both joined together to support an amendment from Rep. Justin Amash, R-Mich., the USA Rights Act, which would have enacted safeguards for Americans' communications, which was rejected by leadership from both parties. On the other end of the spectrum, Senate Minority Leader Chuck Schumer, D-N.Y., joined with McConnell and Republican leadership to ensure that reauthorization was passed.
Several Democrats, including potential 2020 hopefuls, condemned FISA Section 702, but the reality is that many members of the party directly assisted in sharpening the Trump administration's tools, while making the conscious decision to not dull, or limit them in the form of viable amendments.
If the Democrats can't unite behind restricting the Trump administration from being able to spy on Americans' communications without a warrant, the party is likely never going to. It's certainly not the first time the U.S. national security apparatus has come out as the winners of status quo bipartisanship. Democrats joined forces with Republicans to overwhelmingly pass a larger-than-life $700 billion defense budget, despite Trump's limited temperament, and campaign promises to torture suspects and "take out" the families of alleged terrorists. A brief look to the not-so-distant past shows that under both former President Barack Obama's administration and in the early days of Trump's administration, family members of extremists were taken out.
While many Americans may not care about warrantless government surveillance on a massive scale, it's a clear erosion of any true democracy and a seemingly egregious violation of the Constitution. The broader issue of surveillance and invasive technology is purely about power and the ability for governments to monitor the activity of citizens and crack down on dissent. It's seen to suppress dissent in protests both abroad, such as in Iran, and within U.S. borders, such as at protests of the Dakota Access Pipeline.
"I think the average person should be concerned just because it doesn't take a criminal or being a terrorist to get caught up in the government's web," Greene told Salon. "Ultimately, there are many reasons why your communications could be incidentally collected, and once they're in the government's hands they can be subject to fishing expeditions by the FBI . . . it's entirely possible that people can be the subject of invasive searches even though they haven't done anything wrong."