FISA Flood
Congress wants spies at your hotel and café
AMERICANS have learned in the last five years of one scandal after another the Foreign Intelligence Surveillance Act enabled. The FBI exploited FISA to illegally spy on the Trump presidential campaign and to wrongfully search millions of Americans’ emails and online records.
The good news is FISA’s most intrusive provision, Section 702, will expire Dec. 31. The bad news is the Deep State Caucus in Congress is championing a “reform” to allow the feds to secretly and illegally breach far more Americans’ privacy. In lieu of putting a constitutional leash on federal snoops, plenty of congressmen of both parties support what should be called the Biden Big Brother Better Act.
The FISA surveillance-expansion provision is tucked into the 3,000+ page National Defense Authorization Act of 2024. Sen. Mike Lee (R-Utah) warns the reform bill is a “wolf in sheep’s clothing” and urged fellow senators not to “trust any bill so large that it has to be delivered by handcart.” Sen. Rand Paul (R-Ky.) is fighting to separate the FISA provision from the “must pass”
NDAA, but he’ll probably fail.
The House is expected to vote Thursday on the
NDAA as members race to leave town for a long holiday. Rather than fixing FISA’s problems, the bill will likely simply extend existing FISA surveillance law at least until April. Conservatives are howling because they believed House Speaker Mike Johnson had signaled willingness to allow a debate.
When Congress returns to FISA early next year, the House will consider a FISA “reform” bill the Intelligence Committee unanimously approved.
Former Justice Department lawyer Marc Zwillinger is one of a handful of FISA court amici allowed to comment on cases or policies in the secret court. He issued a public warning that the House Intelligence bill expands the definition of “electronic communication service providers” covered by FISA compliance obligations to include “business landlords, shared workspaces, or even hotels where guests connect to the Internet.”
In other words, the FISA expansion could affect your next visit to Comfort Inn — and you thought WiFi service was already bad! Former Justice Department lawyer Elizabeth Goitein warns, “Hotels, libraries, coffee shops, and other places that offer wifi to their customers could be forced to serve as surrogate spies. They could be required to configure their systems to ensure that they can provide the government access to entire streams of communications.” The bill could also cover any repairman who works on such equipment. The biggest controversy on FISA reauthorization hinged on whether the FBI should be required to get a warrant to rummage through the private emails and records of US citizens in data troves snared by the National Security Agency. More than 3 million Americans have been victimized by unjustified warrantless FBI searches thanks to FISA in recent years.
House Judiciary Committee Chairman Jim Jordan (R-Ohio) championed a bill, the Protect Liberty and End Warrantless Surveillance Act, which reauthorizes Section 702 but requires the FBI to get a warrant from a federal judge before accessing the records of American citizens and sharply reduces the number of FBI officials with access to the NSA trove. Jordan’s bill, which received overwhelming bipartisan support and passed the committee 35-2, also includes the Fourth Amendment Is Not For Sale Act, which “stops law enforcement from buying data that should require a court order,” a scandal tagged in a June Post op-ed headlined “Feds are buying your life with your tax dollars.”
On the other hand, the House Intelligence Committee bill would entitle the FBI to continue almost every warrantless FISA search it currently conducts. But that committee did take a heroic stand to safeguard America’s most persecuted and underappreciated minority.
Private companies are legally obliged to notify customers hit by data breaches. Yet there is no such notification requirement for victims of FBI warrantless searches. The Intelligence Committee proposes to remedy that problem by specifically requiring notification — but only for members of Congress whose privacy and rights were violated. “No matter how cynical you get, it’s never enough to keep up,” as comedian Lily Tomlin prophesized.
What other “fixes” will congressional committees slip into the law book? Maybe a requirement for the Justice Department to give advance notice whenever a member of Congress’ web searches could be used against them in federal court? That reform would be too late to help Sen. Bob Menendez (D-NJ), who Googled the value of gold bars and allegedly pocketed bulky bribes to benefit the government of Egypt.
Perpetuating FISA unreformed is another victory for the Deep State.
Any attempt to limit FISAspawned spying is somewhat aspirational since the FBI has paid no price for perennially lying to FISA judges and violating federal law. Sen. Lee suggested Wednesday that the FISA 702 provision was stashed in the NDAA “specifically to delay debate on much-needed FISA reform until after the 2024 election.” But how many more national elections can FISA tarnish without obliterating Americans’ faith in the political system?