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Pelosi — Lead Fight to Block Government Spying on Americans

The House Minority Leader’s influence over her caucus is legendary. It’s down to her and her leadership team to line up Democrats behind real reform.

January 10, 2018

Update: On Janu­ary 11, the U.S. House of Repres­ent­at­ives voted to pass legis­la­tion author­iz­ing the warrant­less collec­tion of millions of Amer­ic­ans’ online and phone commu­nic­a­tions. Read the Bren­nan Center’s state­ment here.

Cross-posted from the San Fran­cisco Chron­icle

The U.S. House of Repres­ent­at­ives could soon vote to do some­thing truly historic and deeply danger­ous: author­ize the warrant­less surveil­lance of Amer­ic­ans. That’s unless Demo­cratic lead­ers — start­ing with House Minor­ity Leader Nancy Pelosi — speak out.

The bill in ques­tion, unveiled last Friday, would reau­thor­ize a section of the Foreign Intel­li­gence Surveil­lance Act. This power­ful law allows the National Secur­ity Agency to collect emails and phone calls without a warrant or evid­ence of wrong­do­ing, but only if the target of surveil­lance is a foreigner over­seas.

The prob­lem arises because this surveil­lance inev­it­ably sweeps in enorm­ous amounts of Amer­ic­ans’ commu­nic­a­tions. The law requires the govern­ment to “minim­ize” the reten­tion and shar­ing of such “incid­ent­ally” acquired data. Instead, as Edward Snowden’s disclos­ures revealed, the CIA, FBI and NSA routinely search their collec­tions for Amer­ic­ans’ phone calls and emails — a prac­tice known as “back­door searches.”

A law designed to target foreign threats has thus become a rich source of warrant­less access to Amer­ic­ans’ data. The poten­tial for abuse is evid­ent under any admin­is­tra­tion. For instance, FBI offi­cials could search for commu­nic­a­tions of Black Lives Matter activ­ists known to have foreign relat­ives in order to keep tabs on their activ­it­ies. The risk of misuse is partic­u­larly worri­some under Pres­id­ent Trump, who flaunts his grudges against polit­ical adversar­ies and has pledged to intensify mosque surveil­lance.

There is strik­ing bipar­tisan consensus that this section of the law must be revised to better protect Amer­ic­ans’ privacy. Lawmakers hail­ing from the progress­ive left to the Tea Party right have intro­duced bills requir­ing the govern­ment to obtain a warrant before attempt­ing to access Amer­ic­ans’ commu­nic­a­tions. Even Cali­for­nia Demo­cratic Sen. Dianne Fein­stein, a former intel­li­gence commit­tee chair who gener­ally favors broad surveil­lance powers, supports a warrant require­ment.

Repub­lican lead­er­ship, however, has backed a series of bills that masquer­ade as reform while author­iz­ing warrant­less searches. Just before the holi­day recess, House Speaker Paul Ryan sched­uled a vote on a bill that gave the govern­ment the option of apply­ing for a warrant. This putat­ive “reform” did not pass the laugh test, and Ryan was quickly forced to cancel the vote.

The most recent bill is cut from the same cloth. It would require a warrant to access Amer­ic­ans’ commu­nic­a­tions, but only in “predic­ated” crim­inal invest­ig­a­tions unre­lated to national secur­ity or foreign intel­li­gence.

The excep­tions in the bill would devour the rule. The govern­ment has adop­ted extremely broad defin­i­tions of “national secur­ity” and “foreign intel­li­gence.” Almost any invest­ig­a­tion of an immig­rant or a Muslim Amer­ican could be shoe­horned into those defin­i­tions, and there would be no way to chal­lenge the desig­na­tion.

Even without those excep­tions, the bill’s warrant require­ment is largely mean­ing­less because it applies only to “predic­ated” crim­inal invest­ig­a­tions — namely, later-stage invest­ig­a­tions based (or “predic­ated”) on well developed facts. Perversely, the govern­ment would remain free to conduct warrant­less searches during the earlier, “assess­ment” phase of the invest­ig­a­tion, when there is less evid­ence of wrong­do­ing.

This back-loaded approach would do more harm than good. Because warrant­less searches could occur only in the early stages, FBI agents would have an incent­ive to conduct them the moment they received the barest tip, however unsup­por­ted or unre­li­able.

Moreover, for early-stage invest­ig­a­tions and those deemed to have “national secur­ity” or “foreign intel­li­gence” compon­ents, the bill expressly author­izes warrant­less access to Amer­ic­ans’ commu­nic­a­tions. It thus codi­fies a prac­tice not author­ized in current law, effect­ively over­rid­ing the require­ment to minim­ize the use of this incid­ent­ally collec­ted data.

Rep. Jerrold Nadler, D-N.Y., the Rank­ing Member of the House Commit­tee on the Judi­ciary, aptly describes the bill as “writ­ten by the intel­li­gence community, for the intel­li­gence community.” Unfor­tu­nately, few outside the FBI know what a “predic­ated” invest­ig­a­tion is. Ryan is bank­ing on this fact, hoping to sell the bill as a pro-privacy meas­ure.

The gambit could succeed. Pelosi and other Demo­cratic Party lead­ers have remained conspicu­ously silent on the faux-reform bills, even as Repub­lic­ans such as Ted Poe of Texas have denounced them. They may not see the flaws beneath the window dress­ing. Or they may be reluct­ant to enter the fray for fear of seem­ing soft on national secur­ity.

Whatever the cause, their reti­cence is endan­ger­ing their constitu­ents’ rights. Congress passed this law to enable detec­tion of foreign threats, not warrant­less surveil­lance of Amer­ic­ans. Back­door searches viol­ate the law’s premise and Amer­ic­ans’ privacy. And they don’t make us safer: the govern­ment has never even claimed that back­door searches have helped to thwart terror­ist plots.

Pelosi’s influ­ence over her caucus is legendary. It’s down to her and her lead­er­ship team to line up Demo­crats behind real reform. If they don’t, the Trump admin­is­tra­tion may soon be able to add another legis­lat­ive victory to Decem­ber’s tax bill: Congress’s bless­ing for warrant­less domestic spying.

(Photo: AP)