How to Balance Civil Liberties With Safety

By Lisa Rosenberg & Jesse Blumenthal
December 21, 2017

The Fourth Amendment to the U.S. Constitution protects American citizens from unreasonable searches and seizures. When drafted, the Framers likely had in mind the recent memory of British redcoats trampling through homes and ransacking desk drawers.  

Today’s electronic surveillance does not leave muddy boot prints in our foyers, but the principle that there should be reasonable limits on the government’s power to intrude upon the private lives of citizens remains. Moreover, even more limited power should be coupled with transparency and accountability mechanisms so that Congress and the public know when and how such surveillance tactics are used.  

Current law gives intelligence agencies the ability to circumvent some of those limits. And it may be debated in secret and quietly be reauthorized before the end of the year. 

Section 702 of the Foreign Intelligence Surveillance Act (FISA) gives the government broad authority to collect communications to pursue intelligence operations against non-Americans for the purposes of national security. But in the course of gathering that information, Americans’ data is captured too.  

The intelligence community has yet to provide an estimate of how many U.S. residents have had their communications swept up under Section 702 programs. Statistical reports released by intelligence agencies have revealed that the National Security Agency collected 151 million phone records and then combed the data for information on Americans over 22 thousand times in 2016 alone. But we still don’t know how often domestic law enforcement agencies like the FBI access the 702 database, or how often data collected without a warrant is used in domestic criminal investigations. As Congress revisits this law, it should use the opportunity to demand more accountability around the use of warrantless data collection.   

What obscures this process is the practice of parallel construction. This is when domestic law enforcement learns something about an individual through information collected without a warrant, such as from a foreign intelligence database, and as a result, knows where to look to construct a different chain of evidence. This means they can avoid disclosing to defendants the fact that information from a warrantless surveillance program was used, making it unclear the full extent to which 702 data is used.  

Yet that initial use of surveillance data, not authorized by a warrant, is the very type of arbitrary search that the Fourth Amendment is meant to protect against. 

This has alarmed lawmakers from both parties. Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.), for example, have introduced the USA RIGHTS Act, which offers the most robust protections of all the legislation proposed to reform and reauthorize Section 702. In addition to requiring a probable-cause court order before the government can review the contents of Americans’ communications, it includes a mandate that the FBI report on how often it sifts through the 702 database without a warrant for Americans’ communications.  

The reporting requirement already applies to the CIA and NSA, so it is reasonable to ask why the FBI is exempt. Additionally, the USA RIGHTS Act stipulates publication of statistics on Americans swept up by Section 702, and declassification of opinions issued by the Foreign Intelligence Surveillance Court. These transparency requirements are essential to ensure that our judicial system and Congress understand how this information is handled and adjudicated. This knowledge will enable Congress to protect the public from unconstitutional government overreach and abuse of power.   

Sens. Patrick Leahy and Mike Lee have also introduced the USA Liberty Act, which is modeled after a similar bill in the House but contains significantly stronger protections for Americans’ privacy than the House version.  

But as other policy debates have taken center stage, public reconsideration of the 702 program has fallen to the wayside. Reauthorization without the scrutiny it deserves will only perpetuate the obfuscated erosion of our due process and privacy rights. The American people deserve a full public debate on this issue in Congress. 

All individuals of good conscience, who believe in the rule of law, protecting fundamental rights, and keeping government within its proper bounds, should work together to reform the surveillance law.

Lisa Rosenberg is the executive director of Open the Government.

Jesse Blumenthal leads technology and innovation efforts at the Charles Koch Institute.