The well-known fable of Chicken Little tells the story of a chicken who gets hit on the head by an acorn falling from a tree and then panics – breaking into a run and telling all the animals she meets that “the sky is falling.”
Much the same is happening today in Washington, with national security “hawks” telling us disaster will befall our country unless Congress passes sweeping legislation that compromises important privacy rights of all Americans.
The legislation causing this alarm would allow the federal government to have the continued ability to gather and access electronic data on Americans abroad and at home without a warrant.
So far, Congress has dealt with this important constitutional issue by doing what it does best – kicking the can down the road.
But early in the new year – possibly as soon as Jan. 19 – Congress will be required to make a decision with enormous consequences. The decision will determine whether, in this age of digital internet communications, the Fourth Amendment in the Bill of Rights of our Constitution means anything at all.
The expansive surveillance power up for renewal in Congress derives from an obscure but important provision of the Foreign Intelligence Surveillance Act (FISA) that’s known as Section 702. Not a very memorable name. Most Americans have never heard of it.
The panicked national security hawks wail like Chicken Little that the loss of Section 702 will bring disaster. They say our foreign intelligence capability to detect and thwart acts of terrorism will “go black” if the powers the government has under Section 702 is not reauthorized to continue essentially unchanged.
Advocates of change, however – led by Sen. Rand Paul, R-Ky., and Sen. Ron Wyden, D-Ore. – along with several members of the House Freedom Caucus, dispute such dire threats. They point to the many tools in the government’s arsenal that it already has and will not lose to protect us from terrorists.
These advocates of reforming Section 702 make a convincing argument. In doing so, they are acting as guardians of our some of our most cherished rights as Americans – rights that set us apart from people in countries where government surveillance goes unchecked and personal freedom is tightly restricted.
The argument of the reformers, which I support, goes like this: America’s national security will not be weakened in any significant way by placing reasonable limits on surveillance authorized under Section 702. So some limit is needed on how far federal officials can go in circumventing the Fourth Amendment’s general rule that a government can’t access an innocent American’s communications without a court order.
To be sure, this is a complex issue – not one that can summarized in a 30-second soundbite for a TV interview. It involves sensitive and secret procedures utilized by the National Security Agency (NSA) to intercept, collect, database, retain, analyze, use and share electronic communications on two types of people: First, individuals believed to be “non-U.S. persons.” And second, American citizens believed to be outside the United States.
There is little dispute that our government operates within constitutional parameters when it limits its collection and use of only the above categories of communications.
However, here is the point of constitutional friction: In using its Section 702 powers, the government has been scooping up vast troves of “incidental” communications on U.S. citizens within the United States. These people have no known connection to terrorism or criminal activity. Such information normally would require a warrant in order to be used in government investigations and prosecutions.
The vast majority of Americans have no idea what the NSA is or what it really does. As result, there a common perception that the entire dispute over Section 702 is an esoteric issue of no immediate concern to most Americans.
This mistaken perception puts those who advocate for reasonable limits on the NSA’s power at a distinct disadvantage in arguing for reform.
Those favoring the status quo are quick to label anyone who advocates for constitutional limitations on Section 702 as working against the ability of the government to protect the nation against acts of terrorism. That’s a difficult charge to rebut in a world where terrorist attacks have been far too common in the years since the Sept.11, 2001mass murders by terrorists in our country.
In a small victory five years ago for advocates of limiting the federal government’s power to electronically surveil and – more importantly -- use the information under Section 702, the provision was set to expire on Dec. 31 this year.
In the past few weeks, the same bipartisan cadre of advocates has been able to stop the Trump administration and its congressional advocates from extending Section 702 indefinitely or for several more years at least until mid-January. That’s is something of a victory in itself.
But as the Section 702 expiration deadline approaches, the Trump administration is pulling out all the stops in its effort to continue collecting communications of American citizens who have no connection to terrorism or criminal activity.
The private communications of these Americans are vulnerable to snooping simply because they may contain a certain word or term that appeared in or “about” a communication by a targeted foreign person.
Government lawyers are even arguing that a procedural ruling issued earlier this year by the secret federal court that considers FISA matters overrides any deadline set in legislation by Congress. They claim this would permit NSA to continue the program at least until April 2018.
But the argument that is designed to keep Section 702 alive until April has a shaky legal underpinning. And in making it, the Trump administration is essentially thumbing its nose at the right of the Congress to legislate an end to a power it previously authorized. However, the extra time offered by such an interpretation may work to the advantage of those who support reasonable limitations on Section 702.
None of those leading the push for reforms that would bring Section 702 surveillance collection within the ambit of the Fourth Amendment are advocating for the outright repeal of the section. And none oppose including in the law limited circumstances in which the government is permitted to intercept and access certain communications of Americans without a warrant.
Importantly, however, the reformers insist that the “default” position in such collection involving American citizens must be a judicial warrant.
Absent such a requirement, the Fourth Amendment to our Constitution – so strongly advocated for by our country’s Founding Fathers two-and-a-quarter centuries ago as a check on government power – will have been rendered impotent. It will be a victim of the federal government’s insatiable 21st century appetite for information it says it must have in order to “protect” us.