U.S. Senate Passes Bill Legalizing Warrantless Searches of Americans’ Emails, Phone Calls

January 18, 2018

Today, the U.S. Senate voted to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), with changes that would for the first time explicitly endorse warrantless searches of millions of Americans’ online and phone communications. Civil liberties advocates in both parties voted against the bill, which will now head to President Trump’s desk for his signature.

The Senate vote, which was not strictly along party lines, was closer than many had expected at 65 to 34. The cloture vote on Tuesday was an even closer 60 to 38, with 8 Republicans and 30 Democrats voting against cloture. 18 Democrats and one independent, however, sided with Republican leadership to end debate on the bill, thus preventing any amendments to increase privacy protections for Americans.

“When Section 702 was passed in 2008, civil liberties advocates predicted it would become a tool for warrantless domestic spying,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Today, their predictions came true. Somehow, a Congress that can’t unite to protect vulnerable children from deportation or to keep the government funded was able to find consensus on eroding Americans’ privacy. Many of the same members who have questioned President Trump’s fitness to hold office voted to give him unprecedented warrantless access to Americans’ calls and e-mails.

“There is a silver lining here,” Goitein added. “The vote was much closer than anyone expected. The right-left coalition in Congress that supports surveillance reform has grown in numbers and in power. The long fight for Americans’ privacy under Section 702 and other laws is not over. We have lost a battle, but we have new confidence that we can win the war.”

Goitein’s recent op-eds in the New York Daily News and San Francisco Chronicle had urged Democratic leadership to line up their caucuses against the bill. Goitein, who testified before Congress on the issue last year, is available for comment.

Read more about the Brennan Center’s work on Section 702 Surveillance.

Read more about the Brennan Center’s work on Liberty & National Security.

For more information or to speak with an expert, contact Naren Daniel at (646) 292-8381 or naren.daniel@nyu.edu