The Trump administration is spying on you. Should we allow them to do that? What can be done about it?

The National Security Agency (NSA) operates at least two spying programs, PRISM and Upstream, which threatens our privacy and violates our Fourth Amendment rights.

The government surveillance permitted under Section 702, collects emails, instant messages, video chats, and phone calls, and stores them in databases that we estimate include at least one billion communications. Based on estimates, roughly half of these files contain information about U.S. citizens or residents.

Spying on U.S. residents without a warrant

The NSA designed these spying programs to have such an enormous scope in order to pick up the communications of Americans without needing to make a case to a judge. Right now, Section 702 grants the government the power to surveil any foreigner overseas who possesses “foreign intelligence information”.

That is so broad that it can easily include journalists and human rights activists, and any communications they have with Americans. This spying authority has especially severe implications for anyone who regularly communicates with people abroad – international businesses, immigrants with family abroad, or even lawyers with global clients.

The Fourth Amendment

The Fourth Amendment protects citizens from unreasonable searches and seizures. Warrantless government surveillance under Section 702 is an unreasonable search and seizure, giving the FBI, CIA and NSA agents frighteningly easy access to some of our most private communications.

Section 702 has been referred to as the “FBI’s ‘Google'”. The FBI has routinely searched through these databases for reasons that have nothing to do with investigating terrorism.

Congress must reform Section 702 to bring it in line with the rule of law. They can start by narrowing the NSA’s overly broad definition of who can be spied on, end the government’s warrantless “backdoor searches” of Americans’ private data, and anchor in law, certain restrictions that the NSA recently adopted but can easily reinstate.

Exposed by Edward Snowden

Section 702 was exposed by Edward Snowden when he revealed that the NSA had been spying on Americans. The government claims that Section 702 was primarily used to stop foreign terrorists. In 2013, we learned that was a lie. The government has been collecting this sensitive information for purposes that have nothing to do with national security.

Intelligence agencies have long exploited a loophole to conduct warrantless searches. The NSA conducts over 30,000 of these “backdoor” searches a year and while the FBI refuses to report their number, we know they perform these searches routinely when investigating a crime, assessing whether they should open an investigation, or even just hunting for information about foreign affairs.

More Government Interference

Politicians from both parties tried to close this backdoor but their efforts were blocked by the intelligence agencies, the Trump White House, Republican leadership in the House and Senate, and the Democratic leader of the House.

Instead, the House pushed through a bill that worsened the current law. It allows warrantless backdoor searches of Americans’ information to continue untouched, imposing a warrant requirement only in cases of an established criminal investigation.

The FBI acknowledges this limitation is unlikely to apply in the vast majority of cases. This is because agents usually perform such searches before opening an active investigation. In addition, the bill has an exception for “foreign intelligence” searches, which could include searches designed simply to find information about foreign affairs.

In other words, Congress has left this loophole wide open for exploitation by an administration openly hostile to critics, immigrants, Muslims, and people of color. The administration can too easily use this as a tool to further their discriminatory and unconstitutional policies.

A glimmer of hope

The vote is getting closer in the House and with some actual debate, real reform provisions likely would have passed. Seven years ago, support for reform was unthinkable.

Congress will debate expiring surveillance provisions again this year, providing a renewed opportunity to force re-examination of our surveillance laws. But Congress doesn’t have to wait for an expiration to act. And reformers can try to force reform by having the House Judiciary Committee propose an amendment to limit the types of surveillance activities our tax dollars can be used for. This amendment would prevent funds from being used for search through U.S. citizens’ emails and phone calls under Section 702 of the Foreign Intelligence Surveillance Act (FISA) unless the government has a reason to think they are involved in wrongdoing.

Section 702 was designed to target people abroad, not U.S. citizens, but it has been used and abused as an end-run around privacy laws. Millions of Americans’ communications are collected under 702 simply because they “talked” to someone abroad.

Also, the amendment would stop the government from using funds to request or force tech companies or developers to build “back doors” into their products, which the government could then walk right through whenever they wanted to conduct surveillance.

The House agreed on the need for surveillance reform, twice. This sends a message to the Senate that it is clearly high time to change the law.

The American Civil Liberties Union (ACLU)

The ACLU is carrying on the fight against Section 702 in the courts.

Pressure to reform our laws could also come from across the Atlantic. The Privacy Shield agreement between the U.S. and the European Union, which governs transatlantic data transfers and is relied upon by thousands of U.S. businesses to service European customers and perform day-to-day activities, will be challenged in European courts.

These courts have previously struck down similar agreements over concerns that they did not adequately consider whether U.S. surveillance laws comported with EU standards. If the Privacy Shield is similarly struck down, surveillance reform may quickly become an economic imperative.

In the meantime, Congress can and should exercise its oversight authority. Members can demand that the intelligence agencies deliver on broken promises to provide information about how the law affects Americans. And they can be vigilant to ensure that additional abuses of the law are brought to light.

We have made a lot of advancement in the last 7 years. Hopefully, we will be able to make quicker advancements in the future, now that the tide has turned, somewhat.

 

What is your opinion of Government surveillance and invasion of privacy? Please leave your comments and questions below and I will be happy to reply. Thanks for reading my post.

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