Important issues sometimes divide our state, but one area where most Granite Staters share common ground is the belief that warrantless secret spying on Americans is unjust.
This week, the U.S. Senate is scheduled to vote on the USA Freedom Reauthorization Act of 2020, a bill that would extend provisions of the Patriot Act that expired in March. These Patriot Act authorities are not critical or necessary, nor are they consistent with Americans’ fundamental rights. However, if the U.S. Congress chooses to reauthorize them, at a minimum, they should be accompanied by meaningful reforms to address the torrent of surveillance abuses that have come to light over the past year. The federal legislation in its current form fails to accomplish this basic task and must be amended.
In 2015, Congress passed the USA Freedom Act in a bipartisan effort to address revelations that the National Security Agency had abused provisions of the Patriot Act to obtain the personal information of virtually every American. The stated goal of the bill was to end bulk and large-scale, indiscriminate collection under the Patriot Act, require transparency to prevent future surveillance abuses, and reform the Foreign Intelligence Surveillance Court, which authorizes surveillance of agents of a foreign power in the United States.
Critical protections that were in the original version of the USA Freedom Act – sponsored by over 150 members of Congress – were omitted in the final version of the bill, and it has become clear since the bill’s enactment that the USA Freedom Act did not succeed in limiting unwarranted surveillance under the Patriot Act and other intelligence laws.
Section 215 of the Patriot Act continues to be used to collect vast amounts of Americans’ sensitive information under a standard far more permissive than a warrant – with the government refusing to disclose the types of records it believes it can collect under the authority. In addition, last year, a report from the U.S. Justice Department’s Inspector General revealed unlawful surveillance of Trump campaign adviser, Carter Page.
Subsequent reports by the Inspector General have shown that the errors in the Page case were not simply one-offs, but rather indicative of systemic deficiencies. For example, a recent audit by the Inspector General of 25 intelligence surveillance applications found “apparent errors or inadequately supported facts” in every single one. It is abundantly clear that we must dramatically reform both the Foreign Intelligence Surveillance Court and our intelligence laws to safeguard personal privacy.
Fortunately, it’s not too late for Congress to right the ship. The U.S. Senate is poised to consider – and should readily adopt – three amendments that offer common-sense, privacy protections.
An adversarial process is a cornerstone of our legal system. Americans expect that when the government makes a claim in a court of law that they aren’t the only voice heard in the courtroom. Unfortunately, that is precisely what happens in our intelligence courts. One of the three pending amendments would help to tackle this problem head-on by encouraging the Foreign Intelligence Surveillance Court to appoint a “friend-of-the-court” to provide privacy and civil liberties expertise in cases raising pronounced constitutional concerns. Another amendment would ensure that individuals who have intelligence information used against them in criminal proceedings are able to access surveillance applications, enabling them to raise legal challenges in cases where they believe they have been unlawfully surveilled.
A third amendment would take steps to prevent the Patriot Act from being used to further trample Fourth Amendment rights by limiting collection of internet and search history. Under the proposed amendment, the FBI would still be able to get internet search and browsing information in foreign intelligence cases – they would just need to show probable cause like they do in the criminal context.
There’s much more that needs to be done to fix our nation’s broken surveillance system beyond what’s accomplished in these amendments. Among other things, protections are needed to ensure that First Amendment activity is not a basis for surveillance, that the government purges data that is not foreign intelligence, and that intelligence agencies comply with their constitutional obligation to fully notify individuals when information obtained as a result of intelligence surveillance is used against them.
We all want to keep our state and our country safe. And we can ensure that safety while also making our government accountable and protecting personal privacy. Undertaking these reforms will help give the American people the transparency and due process protections they are guaranteed under the Constitution.
(Jeanne Hruska is political director at the ACLU of New Hampshire.)