The science of government is the science of experiment.
Statutes routinely give birth to unintended consequences.
That’s why statutory sunsets are long-headed. They force Congress to appraise statutory provisions at periodic intervals guided by the lamp of experience.
Section 702 of the Foreign Intelligence Surveillance Act illustrates the value of sunsets. Its termination date is December 31, 2017, unless reauthorized by Congress. Experience since its enactment by in 2008 shows that section 702 has created a hole in the Fourth Amendment’s protection of privacy big enough to house the Pentagon.
Chairman of the House Judiciary Committee, Robert Goodlatte (R-VA) has an opportunity to become the James Otis of digital privacy by sponsoring legislation to cure section 702’s constitutional defects revealed by experience by requiring judicial warrants based on probable cause to justify invading the communications privacy of Americans.
Generally speaking, foreigners outside the United States loyal to foreign nations are denied Fourth Amendment safeguards. Anchored to this understanding, section 702 authorizes the National Security Agency’s to conduct warrantless interceptions and searches of the contents of phone or email communications involving foreign persons reasonably believed to be outside the United States. Foreign intelligence to defeat international terrorism is section 702’s primary purpose.
The communications intercepted, stored, and searched under Section 702, however, routinely feature a United States person as a communicant. They are fully protected by the Fourth Amendment’s general protection of communications privacy absent a particularized warrant based on probable cause to believe a federal crime is afoot, for instance, material assistance to a foreign terrorist organization.
But the NSA is permitted under section 702 to invade the communications privacy of non-targeted U.S. persons without complying with these constitutionally mandated safeguards. And the NSA has exploited that permission to the hilt. According to reporters Barton Gellman, Julie Tate & Ashkan Soltani of The Washington Post:
“Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post. Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.”
The reporters continued:
“Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or “minimized,” more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S. residents.”
Section 702 permits unmaking the names of U.S. persons whenever their identities would assist in understanding foreign intelligence—an exceptionally loose standard vulnerable to partisan political abuse. Eli Lake, writing in Bloomberg View, reported last April that former National Security Advisor Susan Rice showed a pattern of asking for the unmasking of Trump transition team members who had communicated with foreign officials. He elaborated:
“The intelligence reports were summaries of monitored conversations -- primarily between foreign officials discussing the Trump transition, but also in some cases direct contact between members of the Trump team and monitored foreign officials. One U.S. official familiar with the reports said they contained valuable political information on the Trump transition such as whom the Trump team was meeting, the views of Trump associates on foreign policy matters and plans for the incoming administration.”
President Donald Trump should be especially concerned about section 702’s violation of the Fourth Amendment. It allows the FBI to access communications Trump campaign officials had with any foreign persons without cause to believe they were complicit in any criminal act—the very definition of a fishing expedition.
The communications privacy of United States persons is too important to liberty and freedom of political association to be invaded absent a compelling government interest in law enforcement. Chairman Goodlatte should sponsor an amendment to section 702 that would prohibit any agency from accessing information concerning them without a judicial warrant based on probable cause to believe evidence of a serious federal crime will be unearthed.
President Trump’s current opposition to the amendment is myopic. He will not be in the White House forever.