FISA needs reform. Our amendment would do that — and protect constitutional rights.
May 10, 2020
And yet, a law known as the Foreign Intelligence Surveillance Act (FISA) allows our government to secretly surveil Americans suspected of acting as foreign agents, a process that often falls short of our fundamental constitutional principles. Last year, the Justice Department’s inspector general discovered 17 serious errors or omissions in the FBI’s FISA applications to surveil presidential campaign adviser Carter Page. And these significant errors are not isolated incidents. When the inspector general recently performed a sampling of 29 FBI applications for FISA surveillance, he found an average of 20 “issues” on 25 of 29 of those applications. These include a failure to disclose all exculpatory evidence — evidence that might call the government’s suspicions into question — to the Foreign Intelligence Surveillance Court, which oversees FISA surveillance requests. Ensuring that a court has access to such evidence is a basic due process right guaranteed to all Americans. While the inspector general did not find that these errors were politically motivated, they are nonetheless unacceptable and highlight the need for real reform.
Such reform has become even more important in light of a bill recently passed by the House — and still under consideration by the Senate — to reauthorize several FISA programs. One of them, Section 215, allows the government to obtain the information we give to businesses — from Google searches to genetic profiles from 23andMe to our Amazon purchase histories — with no need for a probable-cause warrant. To see your information, the government needs merely to claim it is “relevant” to a national security investigation. Section 215 also allows the government to conduct FISA surveillance on a great deal of First Amendment-protected activity, which places journalists, religious and ethnic minorities, political groups and others under threat.
To address this and other problems with existing law, we are leading a bipartisan group of senators that will vote for a reauthorization of these FISA authorities, but only if we include additional reforms that are necessary to protect Americans’ privacy and the Fourth Amendment.
The key to our proposal is to substantially strengthen a program that currently allows FISA judges, in very limited circumstances, to appoint outside legal scholars — called “amici”— to independently analyze FBI surveillance requests that are particularly sensitive. Out of thousands of cases, FISA judges have called for such an independent review by a court-appointed “amicus” only 16 times. Yet this protection is critical because, unlike every courtroom you may have stepped into or any court in a TV drama, the FISA court is not adversarial — meaning there is only a government lawyer and a judge, but no one to advocate for Americans under surveillance.
We propose measures that would authorize and actively encourage judges in this secret court to seek independent amicus reviews in all sensitive cases — such as those involving significant First Amendment issues — thereby adding a layer of protection for those who will likely never know they have been targeted for secret surveillance.
We also propose that these independent advisers be given the tools necessary to provide effective oversight over the FBI and National Security Agency. For example, the House bill merely requires that the government certify to the FISA court that exculpatory evidence is fairly reflected in its application to the FISA court. But our amendment would require that such exculpatory information also be provided to the FISA court and these independent advisers upon request so they can provide meaningful advice to the court.
Our amendment would also specifically protect the First Amendment rights of the media, religious and political organizations, public officials and campaigns. Recognizing that the targeting of any of these domestic groups or officials could affect the rights of all Americans, our amendment specifically requires the appointment of independent advisers whenever substantial political or religious liberties are involved. Our colleagues, Sen. Steve Daines (R-Mont.) and Sen. Ron Wyden (D-Ore.), will also propose an amendment to prohibit the collection, without probable cause, of sensitive information such as Web browsing and Internet search history.
Our coalition of the concerned is growing. Americans across the political spectrum are rightfully alarmed at the recent parade of news showing how secret surveillance is really conducted. Every senator who cares about constituents’ privacy should vote to bring surveillance programs into harmony with our nation’s founding principles. Our amendment — and the Wyden-Daines amendment — will help achieve that important objective.
