Bills Introduced by Congress Fail to Fix Unconstitutional NSA SpyingMark M. Jaycox Currently, four bills have been introduced to fix the problem: one by Senator Leahy, Senator Sanders, Senators Udall and Wyden, and Rep. Conyers. The well-intentioned bills try to address the Justice Departments (DOJ) abusive interpretations of Section 215 (more formally,50 USC 1861) apparently approved by the reclusive Foreign Intelligence Surveillance Court (FISA Court) in secret legal opinions. Sadly, all of them fail to fix the problem of unconstitutional domestic spyingnot only because they ignore the PRISM program, which uses Section 702 of the Foreign Intelligence Surveillance Act (FISA) and collects Americans emails and phone callsbut because the legislators simply dont have key information about how the government interprets and uses the statute. Congress must find out more about the programs before it can propose fixes.Thats why a coalition of over 100 civil liberties groups and over half a million people are pushing for a special congressional investigatory committee, more transparency, and more accountability. More Information Needed The American public has not seen the secret law and legal opinions supposedly justifying the unconstitutional NSA spying. Just this week the New York Timesand Wall Street Journal(paywall) reported that the secret law includes dozens of opinionssome of which are hundreds of pages longgutting the Fourth Amendment. The special investigative committee must find out necessary information about the programs and about the opinions. Or, at the very least, extant committees like the Judiciary or Oversight Committees must conduct more open hearings and release more information to the public. Either way, the process must start with the publication of the secret legal opinions of the FISA Court, and the opinions drafted by the Department of Justices Office of Legal Counsel (OLC). Some of the bills try to narrow Section 215 by heightening the legal standard for the government to access information. Currently, the FBI can obtain any tangible thingincluding, surprisingly, intangible business records about Americansthat is relevant to an authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities with a statement of facts showing that there are reasonable grounds to believe that the tangible things are relevant to such an investigation. Bills by Rep. Conyers and Sen. Sanders attempt to heighten the standard by using pre-9/11 language mandating specific and articulable facts about why the FBI needs the records. Rep. Conyers goes one step further than Sen. Sanders by forcing the FBI to include why the records are material, or significantly relevant, to an investigation. By heightening the legal standard, the legislators intend for the FBI to show exactly why a mass database of calling records is relevant to an investigation. But its impossible to know if these fixes will stop the unconstitutional spying without knowing how the government defines key terms in the bills. The bills by Sen. Leahy and Sens. Udall and Wyden do not touch this part of the law. Sens. Udall, Wyden, and Leahy use a different approach; their bills mandate every order include why the records pertain to an individual or are relevant to an investigation. Collectively this aimsbut most likely failsto stop the government from issuing bulk records orders like the Verizon order. Senator Sanders travels a different path by requiring the government specify why each of the business records is related to an investigation; however, its also unclear if this stops the spying. Yet again, Rep. Conyers bill provides the strongest language as it deletes ambiguous clauses and forces all requests pertain only to an individual; however even the strongest language found in these bills will probably not stop the unconstitutional spying. Legislators Are Drafting in the Dark Unfortunately, legislators are trying to edit the statutory text before a thorough understanding of how the government is using key definitions in the bill or how the FISA Court is interpreting the statute. For instance, take the word relevant. The tangible thing produced under a Section 215 order must be relevant to the specific type of investigation mentioned above. But the Verizon order requires every Verizon customers call history. The New York Times confirmed the secret FISA court was persuaded by the government that this information is somehow relevant to such an investigation. The Wall Street Journal(paywall), quoting people familiar with the [FISA Court] rulings wrote: According to the [FISA Court], the special nature of national-security and terrorism-prevention cases means relevant can have a broader meaning for those investigations. Obviously, only severely strained legalesesimilar to the Department of Justices re-definition of imminentcould justify such an argument. And the Fourth Amendment was created to protect against this exact thingvague, overbroad general warrants (.pdf). If relevant has been defined to permit bulk data collection, requiring more or better facts about why is unlikely to matter. Even Sen. Sanderss approachwhich would require each record be related to an investigationcould fall short if relevance is evaluated in terms of the database as a whole, rather than its individual records. This is just one example of why the secret FISA Court decisions and OLC opinions must be released. Without them, legislators cannot perform one of their jobs: writing legislation. Congress Must Obtain and Release the Secret Law The actions revealed by the government strike at the very core of our Constitution. Further, the majority of Congress is unaware about the specific language and legal interpretations used to justify the spying. Without this information, Congress can only legislate in the dark. Its time for Congress to investigate these matters to the fullest extent possible. American privacy should not be held hostage by secrecy. Tell Congress now to push for an special investigative committee, more transparency, and more accountability. Please visit the Electronic Frontier Foundation for the latest in privacy news and civil liberties. linkwithin_text=Related Articles: 