No Luck for Senators Trying to Rein in FISA Powers

The Senate today harshly struck down an effort by the upper chamber's civil libertarians to extend Fourth Amendment protections to electronic communications.

With the fiscal cliff just days away -- but a deal nowhere in sight -- the upper chamber took up the reauthorization of the Foreign Intelligence Surveillance Act. FISA came into being during the Jimmy Carter administration but was thrust into the spotlight after the 9/11 terrorist attacks, when FISA was amended with the Patriot Act in 2001 and subsequent domestic warrantless wiretapping was revealed.

Tea Party Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah) introduced the Fourth Amendment Protection Act, which requires specific warrants granted through FISA courts to gain access to electronic communications.

In a floor speech in support of his amendment, Paul said Americans have become "lazy and haphazard in our vigilance" of the constitutional amendment protecting people against unreasonable searches and seizures.

"We allowed Congress and the courts to diminish our Fourth Amendment protections, particularly when we gave our papers to a third party. Once you gave information to an Internet provider or to a bank. Once we allowed our papers to be held by a third party, such as telephone companies or Internet providers, the courts determined that we no longer had a legally recognized expectation of privacy," Paul said. "...Privacy and the Fourth Amendment have steadily lost ground over the past century."

The senator noted that emails, text messages, and other electronic communications receive less protection than a phone call or snail mail.

His amendment, he said, would simply bring modern forms of communication and the Fourth Amendment into sync.

"Some may ask well, why go to such great lengths to protect records? Isn’t the government just interested in the records of bad people?" Paul said. "Well, to answer this question, you must imagine your Visa statement and imagine what information is on your Visa statement. From your Visa statement, the government may be able to ascertain what magazines you read, whether you drink and how much, whether you gamble and how much, whether you’re a conservative, a liberal, a libertarian, whom do you contribute to, who is your preferred political party, whether you attend a church, a synagogue or a mosque, whether you see a psychiatrist, what type of medication do you take."

"If we have people who are accused of committing a crime, we go before a judge and get a warrant. It’s not that hard."

Few of Paul's colleagues agreed. The amendment failed 79-12.

Not that it wasn't a day for a core group of senators to express widespread concern about FISA.