FISA ‘reform’ runs a freight train through the 4th Amendment

As the chief policy officer of BitChute, a video sharing platform serving millions of U.S. users, I’m closely watching the House and Senate’s discussions on possibly renewing or changing Section 702 of the 2008 FISA Amendments Act. For anyone unaware, Section 702 currently permits warrantless interception, collection, storage, and queries of communications related to “foreign intelligence information.” For well over a decade, Section 702 has enabled our government to conduct warrantless surveillance of foreigners and Americans alike.

With the expiration of the program’s authorization looming, and a vote on a proposal scheduled to take place as early as Wednesday, let’s see what sort of reforms our elective representatives might enact.

Privacy shouldn’t be something we enjoy only at the whim of our elected representatives.

The House Intelligence Committee recently introduced HR 6611, also known as the “HPSCI bill.” If enacted, the legislation would likely further impede my team’s efforts to protect the privacy of our users from unconstitutional invasions of privacy.

First, the bill would reauthorize Section 702 for eight years, during which time a program rife with abuse would effectively be sheltered from scrutiny. In addition, it would significantly expand the definition of the already notoriously broad “foreign intelligence.” That term would now encompass communications related to “international production, distribution, or financing of” a wide range of drugs, or even their “precursors,” such that a whole new swath of communications could be swept up into Section 702’s already vast database.

The House Judiciary Committee passed a somewhat less awful proposal. It would reauthorize Section 702 for only three years and at least require a warrant to query the stored communications of Americans. It also makes gestures toward closing the “data broker loophole,” a separate program whereby our government has been spending our tax dollars to purchase troves of private data about us from data brokers.

As with Section 702, these purchases have taken place without a warrant and without our consent or knowledge. Closing the loophole would be welcomed by those of us who don’t believe we’ve consented to an extended stay in Bentham’s Panopticon by using a Starbucks frequent caffeinator card.

Late Friday we learned, however, that the bill House Speaker Mike Johnson (R-La.) plans to push is neither one of these, but instead a “compromise” bill, long on reauthorization — five years — and short on reform.

Johnson’s scheme shuns any warrant requirements, not even to search the database. It provides not so much as a gesture toward closing the data broker loophole. But it does add a section imposing fines, imprisonment of up to 10 years, or both for anyone who discloses the existence of an application for an order for electronic surveillance. Perhaps meant to discourage whistleblowers?

A warrant requirement amendment is scheduled for a vote, but Rep. Thomas Massie (R-Ky.) says it’s unlikely to pass. Johnson said he’ll allow a vote on a proposal to close the data broker loophole, but only as stand-alone piece of legislation. Senator Mike Lee (R-Utah) said this means “basically killing it,” as it has zero chance of being taken up by the Senate.

Now, nearly 11 years after Edward Snowden’s revelations of our government’s unconstitutional warrantless surveillance programs, many Americans are no longer subdued by the pablum that if they have nothing to hide, they shouldn’t care about invasions of their privacy. They realize something is very wrong with allowing the government to vacuum up our private communications and data and store them in vast databases, available to query at any time — all without probable cause or suspicion.

To help everyone understand the current proposals, I'll explain the background of the "third-party doctrine" that has historically made programs like Section 702 appear legal without a warrant. Remember the intense debate in February's House session about requiring a warrant just to search the Section 702 database? You'll soon realize that these databases shouldn't even exist because they contain vast amounts of private information and communications gathered without a warrant.

The “third-party doctrine,” as expanded by the Supreme Court in the 1970s, denies Fourth Amendment protection to any information shared with “third parties,” such as your telephone company, bank, or email service provider. When the doctrine applies, no warrant is required when the government obtains that shared information, even if the sharing is only for the purpose of receiving services pursuant to an ordinary legal contract.

Prior to the Supreme Court’s rulings in Smith v. Maryland and United States v. Miller, the doctrine was applied only when information had been shared with a third party as part of a criminal endeavor — involving what the common law would have called an “illegal contract.” I examined this history in 2014 law review article, distinguishing the “reasonable expectation of privacy” you and I have when we share information with, for example, our cellular service provider, from the expectation a Tony Soprano might have when he shares information with a criminal co-conspirator.

I concluded that the Supreme Court got it wrong. Our expectations of privacy when we share information with third parties should be respected, and the Fourth Amendment’s warrant requirement should apply when the government obtains that information.

Our government should not be collecting any American’s side of any conversation — even the explicitly authorized “incidental collection” of Americans’ conversations with foreign persons located abroad, i.e. the targeting standard of Section 702. That standard permits surveillance of “any foreign person located abroad who is believed to possess ‘foreign intelligence information.’”

Set aside for now the question whether it is morally justified to target anyone according to this notoriously broad standard. Should an American be deemed to have relinquished his or her reasonable expectation of privacy, simply for communicating with a person who has been so targeted?

At this point, you may be starting to suspect that Section 702 and the “data broker loophole” aren’t the only unconstitutional warrantless surveillance programs in desperate need of “reform.” The proper solution for all such programs is to overturn the Supreme Court’s rulings in Smith and Miller and thereby restore the protection of the Fourth Amendment’s warrant requirement for private data we entrust to others for a limited purpose.

Until then, unfortunately, privacy is something we enjoy only at the whim of our elected representatives. And if they can’t even muster up the courage to enact a “reform” bill that includes a warrant requirement, the best we can hope for is for nothing to pass and for the current authorization to lapse. In that case, the program would continue as is, pursuant to the one-year recertification currently allowed by statute.

Then, next year, after some much-deserved accountability in November, perhaps a new Congress will be ready to deliver a reform bill worthy of the name, one that honors lawmakers' oath to uphold the Constitution.