Last week, the House of Representatives voted to reauthorize the FISA Amendments Act—and its controversial Section 702, which establishes general warrants for wiretapping foreigners—and rejected an amendment offered by Rep. Justin Amash that would have at least required the FBI agents to obtain a warrant before sifting through the NSA’s massive database of intercepted communications for Americans’ messages. As I noted in a blog post at the time, the few supposed “reforms” embedded in the authorization bill are cosmetic at best, and more likely will serve to actually expand the scope of warrantless surveillance. But at least Amash’s amendment got a vote, although without the benefit of much in the way of substantive debate.
This evening the Senate is poised for a cloture vote that will advance 702 reauthorization toward passage later this week, not only with minimal debate, but without even permitting amendments to be offered. Even supporters of the law should regard this as an extraordinary dereliction of duty.
As Sharon Bradford Franklin of New America’s Open Technology Institute observes, we’ve learned an enormous amount about how Section 702 is used since it was last reauthorized five years ago—in part because of the now‐notorious disclosures by Edward Snowden, but also in part because of the unprecedented quantity of information released since then by the government itself, whether voluntarily or in response to Freedom of Information lawsuits.
We’ve learned about the intelligence community’s struggles to follow its own rules, and to keep the Foreign Intelligence Surveillance Court (FISC) and other oversight bodies fully and promptly informed about such “compliance incidents.” We’ve learned about the massive number of foreigners targeted for collection under 702—more than 106,000 last year— though, despite repeated pledges from intelligence officials (ultimately repudiated last year by the new Director of National Intelligence Dan Coats) we haven’t learned how many Americans find their communications caught up in the process.