Snoop­ing law should be mended.

Orlando Sentinel - - FRONT PAGE -

Congress is cur­rently de­cid­ing whether to let the National Se­cu­rity Agency con­tinue to eaves­drop on the phone calls, emails and other elec­tronic com­mu­ni­ca­tions of for­eign­ers lo­cated abroad. This for­eign in­tel­li­gence pro­gram — Section 702 of the For­eign In­tel­li­gence Sur­veil­lance Act — ex­pires at the end of the year.

De­fend­ers of Section 702, which Congress ap­proved in 2008, in­sist that it’s a vi­tal tool in de­tect­ing and dis­rupt­ing ter­ror­ist plots. Many civil lib­er­ties groups ar­gue that the law need­lessly un­der­mines the pri­vacy of Amer­i­cans, whose emails, phone calls and on­line chats can be “in­ci­den­tally” swept up with­out a war­rant when they are com­mu­ni­cat­ing with for­eign­ers, cre­at­ing an end run around the Fourth Amend­ment.

It turns out that both state­ments are ac­cu­rate.

Section 702 is valu­able and it should be reau­tho­rized — not per­ma­nently, as the Trump ad­min­is­tra­tion pro­poses, but for an­other five years. At the same time, Congress must place sig­nif­i­cant lim­its on the abil­ity of do­mes­tic law-en­force­ment agen­cies to view the com­mu­ni­ca­tions of Amer­i­cans. Reau­tho­riza­tion bills ap­proved by com­mit­tees in the Se­nate and House so far fall short in that re­gard.

Although Amer­i­cans aren’t “tar­geted” by elec­tronic sur­veil­lance un­der Section 702, any U.S. cit­i­zen or per­ma­nent res­i­dent who hap­pens to com­mu­ni­cate with for­eign­ers who are tar­gets can have their per­sonal com­mu­ni­ca­tions caught up in the drag­net — even those who have noth­ing to do with ter­ror­ism or es­pi­onage.

That’s trou­bling in it­self. Even more ob­jec­tion­able is that the FBI can search the data­base of data col­lected un­der the pro­gram for in­for­ma­tion about Amer­i­cans, in­clud­ing ev­i­dence im­pli­cat­ing them in a crime. It’s vi­tal that Congress re­strict the FBI’s ac­cess to the con­tent of NSA-gath­ered emails and other com­mu­ni­ca­tions in­volv­ing Amer­i­cans, al­low­ing it only if the FBI ob­tains a war­rant based on prob­a­ble cause that a crime has been com­mit­ted or that the U.S. per­son is an agent of a for­eign power or ter­ror­ist or­ga­ni­za­tion . ...

FBI Di­rec­tor Christo­pher Wray [has] warned against amend­ing Section 702, ar­gu­ing that changes sought by civil lib­er­ties groups would re-erect walls be­tween law en­force­ment and for­eign in­tel­li­gence that were re­moved af­ter 9-11 and “put the Amer­i­can pub­lic at greater risk.”

That’s scare-mon­ger­ing. Even the most pri­vacy-pro­tec­tive pro­pos­als pend­ing in Congress al­low searches of for­eign-in­tel­li­gence data in­volv­ing Amer­i­cans with­out a court or­der in life-threat­en­ing emer­gency sit­u­a­tions. But in other sit­u­a­tions in­ves­ti­ga­tors must be re­quired to ob­tain a war­rant be­fore look­ing at the com­mu­ni­ca­tions of Amer­i­cans that are caught up in the for­eign-in­tel­li­gence drag­net. Other­wise, Section 702 opens a loop­hole that en­dan­gers a key pri­vacy pro­tec­tion in the Bill of Rights. And that should ap­ply whether the U.S. per­son is sus­pected of vi­o­lat­ing a crim­i­nal law or be­ing an agent of a for­eign power. No more back­door searches.

Section 702 shouldn’t be ended, but it should be mended.

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