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.

“Too often this body finds itself in the position of having to give rushed consideration to the extension of expiring surveillance authorities,” said Sen. Chris Coons (D-Del.). “The intelligence community tells us these surveillance tools are indispensable to the fight against terrorism and foreign spies, just as they did during the PATRIOT Act reauthorization debate last year.”

“The Delawareans for whom I work, the nation for whom we work expects that the government cannot listen in on their phone calls or read their emails unless a judge has signed a warrant,” continued Coons, expressing his support for multiple amendments to require stricter guidelines for and reporting of FISA surveillance.


“If there is a reason why this requirement is not consistent with national security, then I say let the intelligence community make that case and allow us to debate that and consider it in public,” he said. “It is to me simply not acceptable for the intelligence community to ask us to surrender our civil liberties and then refuse to tell us with any specificity why we must do so, the context and the scale of the exercise of this surveillance authority. In my view, America’s first principles demand better.”

Other amendments included one from Sen. Jeff Merkley (D-Ore.) to direct the administration to establish a framework for declassifying FISA court opinions, one from Sen. Pat Leahy (D-Vt.) that would sunset the provisions in three years instead of five, and one from Sen. Ron Wyden (D-Ore.) to force the intelligence community to provide Congress and the public as appropriate with specifics on just how much domestic communication has been captured under current rules and what the intelligence community does with that information.

But Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) argued that supporting any of the amendments would give the upper hand to terrorists.

If the bill was amended, she noted, it would have to go back to the House — which doesn’t return until Sunday night — for reconsideration, forcing authorized surveillance to halt after the Dec. 31 FISA expiration.

“There is a view of some that this country no longer needs to fear attacks,” Feinstein said. “I don’t share that view.”


All amendments failed. A final vote on the reauthorization was delayed until Friday.

“We have examples in the past, in our own country, of abuses of government. During the civil rights era, the government snooped on activists. During the Vietnam era, the government snooped on antiwar protesters. In a digital age where computers can process billions of bits of information, do we want the government to have unfettered access to every detail of our lives? From your Visa statement, the government can determine what diseases you may or may not have, whether you’re I impotent, manic, depressed, whether you’re a gun owner, whether you buy ammunition, whether you’re an animal rights activist, whether you’re an environmental activist, what books you order, what blogs you read, what stores or Internet sites you look at. Do you really want your government to have free and unlimited access to everything you do on your computer?” Paul said.

“The Fourth Amendment was written in a different time and a different age, but its necessity and its truth are timeless.”


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