Government surveillance constitutionality must be limited

OPINION:

Two years ago, in the wake of Edward Snowden’s revelation of sweeping electronic surveillance by the National Security Agency, Congress enacted the USA Freedom Act, to put an end to the NSA’s nationwide bulk collection of telephone “metadata” — who we call, when we call and for how long — on everyday Americans. At the time, some warned that the law would weaken efforts to stop terrorism, but there is no evidence it has done so.

The USA Freedom Act was an important milestone in protecting the privacy Americans have a right to expect. But it got only part of the job done. Section 702 of the Foreign Intelligence Surveillance Act, or FISA, authorizes the NSA to collect not just “metadata,” but the actual contents of telephone, email and other electronic communications, again without a warrant or probable cause. The provision is designed to target foreign nationals outside the United States, but has been used by the NSA to intercept and collect electronic communications of Americans and thus clearly implicates Americans’ privacy.

Section 702 sunsets in December unless affirmatively extended, so Congress has to address whether — and how — the law should survive. We come from different ends of the political spectrum. One of us is a past president of the National Rifle Association (NRA) and former chairman of the American Conservative Union. The other is the national legal director of the American Civil Liberties Union (ACLU). But we agree that any extension of Section 702 must include important protections to preserve privacy.

Sens. Rand Paul, Kentucky Republican, and Ron Wyden, Oregon Democrat, have introduced a bill to do just that: the USA Rights Act. It deserves support from anyone who cares about maintaining the privacy that Americans have historically enjoyed, while leaving intact the government’s ability to combat foreign threats. It also stands in marked contrast to a bill proposed by Sen. Richard Burr, North Carolina Republican, which would expand rather than reform Section 702.

Here’s why we support the USA Rights Act:

First, it ends suspicionless “backdoor” searches of data collected under Section 702. This is critically important because the NSA collects massive amounts of information under Section 702 without a warrant whenever it might be relevant to “foreign intelligence,” a term that includes virtually any information that touches on foreign affairs. That collection inevitably contains many communications with American citizens and residents, and the government has interpreted current law to allow it to search the Section 702 database to look for information about individuals in the U.S. without any warrant or probable cause. The USA Rights Act would still allow the government to conduct such searches, but not without a warrant based on probable cause. The government shouldn’t have the power to go on fishing expeditions targeting U.S. residents without that protection.

Second, the USA Rights Act would forbid the practice of using Section 702 to collect not only communications to and from foreign targets, but also communications “about” foreign targets, even if they are entirely domestic. Section 702 was never meant to authorize such searches, but the NSA apparently has interpreted it give it that authority. As the NSA saw it, the law allowed it to intercept an email from a Cincinnati native to his mother in Cleveland if it happened to mention a foreign target — again, without probable cause or a warrant.

Third, the USA Rights Act promotes accountability and transparency, essential checks on government abuse. It clarifies that the government must notify criminal defendants whenever it uses evidence found through leads obtained under Section 702. This would provide one of the only ways that courts can review whether the government is complying with the law. The USA Rights Act also requires more detailed reporting by the intelligence agencies — which they have refused to provide despite repeated requests from Congress — on how often they use Section 702 to collect information about people in the U.S.

We don’t question the need for surveillance to protect against genuine terrorist threats, but when it comes to invading the privacy of people in this country, the Constitution requires the government to honor the basic safeguards of the Fourth Amendment: a warrant and probable cause. Reasonable restrictions on government overreach like those included in the USA Rights Act are essential if we are to preserve the privacy that Americans have long enjoyed. The Constitution’s framers understood that privacy was a critical bulwark against government abuse. It is no less so today.

• David Cole is the national legal director of the American Civil Liberties Union. David Keene is former president of the National Rifle Association and is editor at large at The Washington Times.