Most Senate Intelligence Committee Members Are Fine With Domestic Surveillance By The NSA

from the 13-of-15-Senators-agree-to-ignore-the-Fourth-Amendment dept

The Senate Intelligence Committee has released its report [PDF] on its Section 702 reauthorization plan. Rather than adopt any serious reforms -- like those proposed by Sen. Ron Wyden -- the SIC plans to move ahead with its non-reform bill, one that's actually weaker than the watered-down offering from the House.

The bill remains pretty much as bad as it was when it was first introduced. It still allows the NSA to start up its "about" collection again, although it does require approval from the FISA court first and contains a safety valve for introduction of legislation forbidding this collection. (I guess Wyden's reform bill doesn't count.)

Other than that, it's still just bad news, especially on the Fourth Amendment front, as it allows both the collection of wholly domestic communications and backdoor searches of NSA data stores. The upshot of the report is this: eleven senators are perfectly fine with domestic surveillance.

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report. Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized. That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

There are two more you can add to this list: Sens. Feinstein and Harris. Although they voted against allowing the NSA to collect wholly domestic communications, they did vote against Wyden's amendment, which would have limited the use of domestic communications by US government agencies to only a few national security-related crimes.

Their vote against this means Feinstein and Harris are no better than the other eleven when it comes to domestic use of supposedly foreign-facing dragnets if there's any evidence of domestic criminal activity caught in the net. That includes a longer list of crimes which really aren't the sort of thing we should be using dragnets to investigate: "serious bodily injury," CFAA violations and human trafficking -- the latter of which could be nothing more than US citizens helping stranded foreigners.

On top of that, there's no judicial review involved when the government makes a determination that something "affects, involves or is related to" national security. As Marcy Wheeler has pointed out, this allows the DOJ to decide what it can or can't collect on US persons using NSA surveillance programs.

Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

So, the Senate version is way worse than the House version, which wasn't all that great to begin with. The fact that it's now mid-November and these bills are now just taking the next step towards a floor vote pretty much guarantees these non-reform efforts will be stapled to the backend of a must pass appropriations bill, where they're less likely to rejected on their own merits.

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Filed Under: 702 reform, domestic surveillance, ron wyden, senate intelligence committee, surveillance