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NSA Spying
Why the FISA Amendments Act is Unconstitutional
The FISA Amendments Act gives the government nearly unfettered access to
Americans’ international communications. Government surveillance that sweeps up
the communications of U.S. citizens and residents should be conducted in a
manner that comports with the Constitution, and in particular with the Fourth
Amendment, which prohibits “general warrants” and unreasonable searches. The
FISA Amendments Act allows the government to engage in mass acquisition of U.S.
citizens’ and residents’ international communications with virtually no
restrictions. Some of the main problems with the law are:
- Unidentified Targets
The government can intercept U.S. residents’ international telephone and
email communications without having to even name the people or groups it is
monitoring or show its targets are suspected of wrongdoing or connected to
terrorism . The target could be a human rights activist, a media organization, a
geographic region, or even a country. Nothing requires the government to
identify its surveillance targets at all.
- Anywhere, USA
The government can intercept U.S. communications without having to identify the
facilities, phone lines, email addresses, or locations to be monitored.
Theoretically, the government could use the new law to collect all phone calls
between the U.S. and London, simply by saying to the FISA court that it was
targeting someone abroad and that a significant purpose of its new surveillance
program is to collect foreign intelligence information.
- No Judicial Oversight
Our system is one of checks and balances. The constitution requires real
judicial oversight to protect people who get swept up in government
surveillance. The new law gives the FISA court an extremely limited role in
overseeing the government’s surveillance activities. Rather than reviewing
individualized surveillance applications, the FISA court is relegated to
reviewing only the government’s “targeting” and “minimization” procedures. It
has no role in overseeing how the government is actually using its surveillance
power. Even if the FISA court finds the government’s procedures deficient, the
government can disregard this and continue illegal surveillance while appealing
the court’s determination.
- No Limits
There are no real limits on how the government uses, retains, or disseminates
the information that it collects. The law is silent about what the government
can keep and what it has to get rid of. It fails to place real limits on
how information can be disseminated and to whom. This means the government can
create huge databases that contain information about U.S. persons obtained
without warrants and then search these databases at a later point.
- Not Just Terrorism
The law does not limit government surveillance to communications relating to
terrorism. Journalists, human rights researchers, academics, and attorneys
routinely exchange information by telephone and e-mail that relates to the
foreign affairs of the U.S. (Think, for example, of a journalist who is
researching the “surge” in Iraq, or of an academic who is writing about the
policies of the Chávez government in Venezuela, or of an attorney who is
negotiating the repatriation of a prisoner held at Guantánamo Bay.) The Bush
administration has argued that the new law is necessary to address the threat of
terrorism, but the truth is that the law sweeps much more broadly and implicates
all kinds of communications that have nothing to do with terrorism or criminal
activity of any kind.
- Purely Domestic
The law gives the government access to some communications that are purely
domestic. The government can acquire communications so long as there is
uncertainty about the location of the sender or recipient. A reasonable law
would have required any uncertainty to be resolved in favor of the privacy
rights of U.S. citizens and residents, but this law requires uncertainty to be
resolved in favor of the government. Thousands or even millions of purely
domestic communications are likely to be swept up as a result. - Immunity for Lawbreakers
The law immunizes the telecoms that participated in the Bush administration’s
illegal warrantless wiretapping program. Telecommunication corporations
that violated the law and allowed the government to trample the privacy rights
of thousands of Americans should be held accountable for their activities.
Letting them off the hook only invites further abuse in the future. >> Download the handout >> Read an extended analysis of why the FAA is unconstitutional >> More on the FAA lawsuit
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