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fourth amendment
Amid Spying Fight, House Passes Fourth Amendment Is Not For Sale Act
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," said one advocate.
Apr 17, 2024
While applauding the U.S. House of Representatives' bipartisan passage of a bill to ensure that "law enforcement and intelligence agencies can't do an end-run around the Constitution by buying information from data brokers" on Wednesday, privacy advocates highlighted that Congress is trying to extend and expand a long-abused government spying program.
The House voted 219-199 for Fourth Amendment Is Not For Sale Act (FANFSA), which won support from 96 Democrats and 123 Republicans, including the lead sponsor, Rep. Warren Davidson (R-Ohio). Named for the constitutional amendment that protects against unreasonable searches and seizures, H.R. 4639 would close what campaigners call the data broker loophole.
"The privacy violations that flow from law enforcement entities circumventing the Fourth Amendment undermine civil liberties, free expression, and our ability to control what happens to our data," said Free Press Action policy counsel Jenna Ruddock. "These impacts affect everyone who uses digital platforms that extract our personal information any time we open a browser or visit social media and other websites—even when we go to events like demonstrations and other places with our phones revealing our locations."
"We're grateful that the House passed these vital and popular protections," she added. "The bill would prevent flagrant abuses of our privacy by government authorities in league with unscrupulous third-party data brokers. Making this legislation into law with Senate passage too would be a decisive and long-overdue action against government misuse of this clandestine business sector that traffics in our personal data for profit."
Wednesday's vote followed the House sending the Reforming Intelligence and Securing America Act to the Senate. H.R. 7888 would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless spying on noncitizens abroad but also sweeps up Americans' data.
The House notably included an amendment forcing a wide range of individuals and businesses to cooperate with government spying operations but rejected an amendment that would have added a warrant requirement to the bill, which the Senate could vote on as soon as Thursday.
Noting those decisions on the FISA reauthorization legislation, Ruddock stressed that "today's vote is a victory but follows a recent loss and ongoing threat as that Section 702 bill moves to the Senate this week too."
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," she argued. "That means passing FANFSA and reforming Section 702 authority—and prioritizing everyone's First and Fourth Amendment rights."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, also praised the House's FANFSA passage on Wednesday.
"The passage of the Fourth Amendment Is Not For Sale underscores the extent to which reining in abusive warrantless surveillance is a bipartisan issue," Scott said. "We urge the Senate to take up this measure and close the data broker loophole."
Kia Hamadanchy, senior policy counsel at ACLU, similarly said Wednesday that "the bipartisan passage of this bill is a flashing warning sign to the government that if it wants our data, it must get a warrant."
Hamadanchy added that "we hope this vote puts a fire under the Senate to protect their constituents and rein in the government's warrantless surveillance of Americans, once and for all."
Sen. Ron Wyden (D-Ore.), a critic of the pending 702 bill and FANFSA's lead sponsor in the upper chamber, called the the House's Wednesday vote "a huge win for privacy" and said that "now it's time for the Senate to follow suit."
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'Five-Alarm Fire' as GOP House Speaker Tries to Ram Through Spying Bill
"Absentsignificant amendment, RISAA will do nothing to prevent the government's repeated abuses of Section 702 to spy on Americans," critics said.
Apr 10, 2024
Update (3:45 pm ET):
Nineteen Republicans in the U.S. House of Representatives on Wednesday blocked the GOP speaker's effort to move forward with reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, a controversial spying authority historically abused by government agencies.
"The failure of today's vote makes clear that even with the speaker's finger on the scale, Congress won't reauthorize FISA without meaningful privacy reforms," responded Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project.
"The path forward is clear: We need strong reforms to Section 702, including closing the backdoor search loophole and data broker loophole," he added. "Another short-term extension ignores the genuine privacy concerns that have been raised by members of both parties. It's time to bring a bill with genuine reforms to the House floor."
Earlier:
With just over a week left for the U.S. Congress to renew a major—and highly controversial—state surveillance program before it expires, privacy defenders on Tuesday warned that so-called "compromise" legislation is little more than a ploy to permanently reauthorize warrantless government spying on American citizens.
The Biden administration and members of Congress from both parties are seeking to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits warrantless surveillance of non-U.S. citizens but also captures the communications of Americans.
Following a Tuesday markup session by the House Rules Committee and Wednesday consultations with intelligence officials, House Speaker Mike Johnson (R-La.) is expected to call a vote on the Reforming Intelligence and Securing America Act (RISAA) on Thursday. The bill would reauthorize Section 702 for five years while enacting what supporters call a series of reforms meant to protect Americans against state surveillance.
"Absent significant amendment, RISAA will do nothing to prevent the government's repeated abuses of Section 702 to spy on Americans," said the Brennan Center for Justice, Electronic Privacy Information Center (EPIC), and FreedomWorks in a joint statement.
Introduced in February by Rep. Laurel Lee (R-Fla.), RISAA would reauthorize what the congresswoman called "an indispensable tool that protects us from national security threats within the United States and abroad."
Congress passed a short-term extension of Section 702 last December, with lawmakers unable to agree on whether and how to reform the contentious law that has been abused hundreds of thousands of times, including to spy on protestors, congressional donors, journalists, and others.
RISAA is meant to be a compromise between the Protect Liberty and End Warrantless Surveillance Act and the FISA Reform and Reauthorization Act. The former bill was supported by privacy defenders, while the ACLU warned that the latter "would greatly expand the government's ability to spy on Americans without a warrant."
Proponents are touting RISAA's 56 purported reforms. Johnson asserted last week that the legislation "will establish new procedures to rein in the FBI, increase accountability at the Foreign Intelligence Surveillance Court (FISC), impose penalties for wrongdoing, and institute unprecedented transparency across the FISA process so we no longer have to wait years to uncover potential abuses."
However, civil liberties defenders warn that many of RISAA's so-called reforms are little more than window dressing that preserve the status quo.
"Making 56 ineffective tweaks to a fundamentally broken law is not reforming it," said the Brennan Center, EPIC, and FreedomWorks.
Johnson had previously supported closing the so-called data broker loophole—which the government exploits to purchase sensitive information—and the backdoor search loophole, through which domestic law enforcement agencies can access Americans' communications without a warrant. While the House is expected to vote Thursday on an amendment to close the backdoor search loophole, lawmakers are also likely to vote on three FISA expansions and special protections that only apply to members of Congress.
"This is so disappointing—when Speaker Johnson was on the Judiciary Committee with me, he was in our coalition fighting for major FISA reforms to protect sensitive data. Now that he's speaker, he's folding to spy agencies who want to violate your privacy," Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) wrote on social media Tuesday.
Jayapal lamented that RISAA says the "FBI has to notify congressmembers to spy on us, but regular Americans can be spied on without a warrant?"
Demand Progress policy director Sean Vitka said in a statement, "In a truly staggering betrayal of public trust, Speaker Johnson is now not only sabotaging votes on overwhelmingly popular privacy protections for Americans, he is trying to ram through the Intelligence Committee's expansions of FISA."
"This is a five-alarm fire, born from Speaker Johnson's apparent decision to jam his thumb on the scale and sell out everyone in the United States to foreign data brokers," Vitka added.
Furthermore, RISAA contains a provision that Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center, warns "could result in the permanent reauthorization" of Section 702 "without a single reform."
"The House must NOT pass any legislation that could be read to permanently reauthorize Section 702, let alone permanently reauthorizing it without a single reform," Goitein said. "This provision of RISAA must be fixed, or the bill should be DOA."
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Supporters of Government Surveillance Reform Act Aim to End 'Litany of Abuse'
"For too long, federal intelligence and law enforcement agencies have had nearly unchecked access to Americans' personal data," said Rep. Zoe Lofgren.
Nov 07, 2023
Answering years of demands for significant reforms, a bipartisan group of U.S. lawmakers on Tuesday unveiled a highly anticipated bill designed to crack down on the federal government's "disturbing" misuse of surveillance authorities.
The Government Surveillance Reform Act (GSRA)—led by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah) along with Reps. Warren Davidson (R-Ohio) and Zoe Lofgren (D-Calif.)—takes aim at authorities including Section 702 of the Foreign Intelligence Surveillance Act (FISA), which will expire at the end of 2023 unless reauthorized by Congress.
Section 702 allows warrantless surveillance of electronic communications targeting foreigners located outside the United States, to acquire foreign intelligence information. However, Americans' data is often collected too, and court documents have revealed "chilling" abuse, particularly at the Federal Bureau of Investigation.
"Americans know that it is possible to confront our country's adversaries ferociously without throwing our constitutional rights in the trash can. But for too long surveillance laws have not kept up with changing times," Wyden said in a statement.
"Our bill continues to give government agencies broad authority to collect information on threats at home and abroad, including the ability to act quickly in emergencies and settle up with the court later," he added. "But it creates much stronger protections for the privacy of law-abiding Americans, and restores the warrant protections that are at the heart of the Fourth Amendment."
Specifically, as a fact sheet from the sponsors details, the bill renews the controversial section of FISA for four years but also "reforms 702 to protect Americans from warrantless backdoor searches, ensures that foreigners aren't targeted as a pretext for spying on the Americans with whom they are communicating, and prohibits the collection of domestic communications."
The bill would also extend similar reforms to spying activities under Executive Order 12333, ban the government from buying Americans' data from brokers, and require warrants for surveillance of U.S. citizens' location data, web browsing, and search records, including artificial intelligence assistants such as Alexa and Siri.
"It would be unwise for members of Congress to greenlight another major surveillance reauthorization without carefully considering and enacting surveillance reform measures," Lofgren argued. "For too long, federal intelligence and law enforcement agencies have had nearly unchecked access to Americans' personal data."
"Our bipartisan, bicameral comprehensive and calibrated legislation provides reform solutions sought for decades," she continued. "With widespread support from across the political spectrum the Government Surveillance Reform Act would dramatically curb surveillance abuse and protect Americans' civil liberties, while preserving national security."
In addition to co-sponsors from both parties, the bill is backed by dozens of rights groups—including Demand Progress, whose policy director Sean Vitka declared that "this is the most significant opportunity for protecting Americans from warrantless government surveillance in generations, and the GSRA rises to the challenge."
Other groups supporting the GSRA include the ACLU, Brennan Center for Justice at New York University School of Law, Center for Democracy & Technology (CDT), Electronic Frontier Foundation, Electronic Privacy Information Center, Fight for the Future, and Free Press Action.
Jake Laperruque, deputy director of the CDT's Security and Surveillance Project celebrated that the bill would "end the litany of abuse of FISA 702 we've seen year after year and close serious loopholes, all while preserving the operational value needed for national security."
Free Press Action vice president of policy Matt Wood similarly applauded the bill as "a true milestone in the effort to rein in abuse of foreign intelligence gathering tools," and highlighted that when agencies misuse such tools, "they disproportionately target people of color, recent immigrants, members of religious groups, and dissidents."
Given the history of "countless abuses," ACLU senior policy counsel Kia Hamadanchy concluded that "Congress should not vote to reauthorize Section 702 without the critical reforms contained in this bill."
Elizabeth Goitein, senior director of the Brennan Center's Liberty & National Security Program, pointed out that "if passed, this would be the most significant surveillance reform legislation since FISA itself," which was enacted in 1978.
Goitein and her colleague Noah Chauvin also stressed that there is still room for improvement, explaining at Just Security on Tuesday that the legislation "does not include all of the reforms sought by the Brennan Center (where we both work) and a cross-partisan coalition of 30 other privacy, civil rights, and civil liberties organizations. Most notably, the bill does not narrow the scope of foreign intelligence surveillance."
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