- The Washington Times - Wednesday, January 10, 2018

ANALYSIS/OPINION:

In the next few days, Congress will vote on whether and how to renew a controversial part of the Foreign Intelligence Surveillance Act that has resulted in the collection of thousands of Americans’ private communications — without probable cause or a warrant.  

The members have two principal choices: to renew the law, known as Section 702, without protecting Americans’ privacy, or to do so only on condition that Americans’ privacy is protected. We are the past president of the NRA and the national legal director of the ACLU. We disagree about lots of things. But here we are in complete agreement: The law should not be renewed unless its abuses are reined in. Only one of these bills does that — the USA Rights Act.

We see eye to eye on this because history has shown that surveillance powers have been abused by Democratic and Republican administrations alike — and against right- and left-wing citizens.

President Lyndon Baines Johnson ordered FBI Director J. Edgar Hoover to bug his Republican rival Barry Goldwater’s campaign plane. President John F. Kennedy surveilled Martin Luther King, Jr. under the pretext of protecting “national security.” Broad and unchecked surveillance powers have been used as a tool against activists, government critics, journalists and minorities.

We don’t question the need for surveillance to protect against genuine terrorist threats. But when officials are given such sweeping powers, there is a real risk that even well-meaning officials will abuse that power under the pressures of their office. That is why the Constitution requires the government to honor the basic safeguards of the Fourth Amendment: a warrant and probable cause. These tools ensure that surveillance takes place against the right people for the right reasons.

Section 702 empowers the NSA to collect “electronic communications” as long as it is “targeting” a foreign national overseas. The NSA uses it to collect hundreds of millions of communications, on over 100,000 “targets,” every year. Targets need not be suspected of terrorism, but only of having information related to “foreign affairs.” And anytime a person in the United States is communicating with someone overseas, he runs the risk that his communications will be swept up, too.  

The NSA has used this authority in ways Congress never intended. It collects purely domestic communications. It swept up not just messages sent to or from intelligence targets, but communications that are merely “about” a target. As the NSA lawyers see it, the law allows the agency to intercept an email from a Cincinnati native to his mother in Cleveland if it happens to refer to a foreign target’s email or phone number — without probable cause or a warrant. And the NSA searches this vast trove of information, again without a warrant, to investigate domestic crimes. The FBI claims it cannot even count how many of these searches it conducts.

In voting to renew this law, Congress has two principal choices. Rep. Devin Nunes, California Republican, has introduced a bill that hand-waves at reform, but actually threatens to expand unconstitutional surveillance. The far better choice is the USA Rights Act. It would preserve the NSA’s authority to conduct surveillance overseas where it serves our national security interests, but would insist on critical protections for Americans’ private communications.   

Supported by Rep. Ted Poe, Texas Republican, Rep. Zoe Lofgren, California Democrat, and a bipartisan coalition of over 50 other lawmakers, the USA Rights Act would end the practice of targeting Americans via suspicionless “backdoor” searches of data collected under Section 702. It would allow the government to review such private communications, but only with a warrant based on probable cause.

In addition, it would forbid collecting communications that are merely about, but not to or from, foreign targets. Section 702 was never meant to authorize such searches, they violate the Fourth Amendment, and they should end now.

The Nunes bill, by contrast, makes the law worse. It would allow “backdoor” searches to continue in the vast majority of cases, even where there is no open investigation. And it risks codifying government collection of Americans’ domestic communications that contain references to foreign surveillance targets.

Mr. Nunes claims that USA Rights Act would “endanger security of the United States” by letting “foreign spies and terrorists sue the U.S. government.”  That’s simply not true. In fact, the USA Rights Act would leave intact the parts of the program that the government claims work. It does not limit targeting of foreign nationals overseas. It permits the government to view Americans’ information in the course of searching for information about foreigners. And it allows the government to obtain information without a warrant in a true emergency.  

Reasonable restrictions like the USA Rights Act are essential if we are to preserve Americans’ civil liberties. If Congress renews Section 702, it should do so only by adopting the USA Rights Act. It preserves both our security and our rights.   

• David Keene, an editor at large at The Washington Times, is the past president of the National Rifle Association (NRA). David Cole is the national legal director of the American Civil Liberties Union (ACLU).


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