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patriot act
Warnings of 'Patriot Act 2.0' as House Prepares to Vote on Mass Spying Authority
An amendment headed for a vote Friday "would put in place the largest expansion of domestic surveillance since the Patriot Act," one privacy advocate warned.
Apr 12, 2024
The U.S. House is expected to vote Friday on legislation to reauthorize a surveillance authority that intelligence agencies have heavily abused to collect the communications of American activists, journalists, and lawmakers without a warrant.
Friday's vote will come after House Republicans earlier this week blocked Speaker Mike Johnson's (R-La.) attempt to advance legislation reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows U.S. agencies to spy on non-citizens located outside of the country.
The FBI and NSA have regularly used the spying authority, which is set to expire next week, to obtain the communications of U.S. citizens, sparking a bipartisan reform push.
The legislation the House is set to consider Friday would reauthorize Section 702 for two years instead of five. Lawmakers will also vote on several amendments, including three from the House Permanent Select Committee on Intelligence (HPSCI) that would expand the spying authority.
"The first amendment would put in place the largest expansion of domestic surveillance since the Patriot Act… and I don't say that lightly," Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote on social media late Thursday. "It would hugely inflate the universe of companies required to assist the government in conducting surveillance."
Another amendment, she noted, would permit "suspicionless searches for the communications of non-U.S. persons seeking permission to travel to the U.S., even if the multiple vetting mechanisms already in place have revealed no cause for concern."
The underlying legislation, titled the Reforming Intelligence and Securing America Act, "would do nothing to prevent abuses of Section 702, and it would actually weaken the FISA Court's oversight of surveillance," Goitein wrote.
The House will vote on Section 702 TOMORROW MORNING. If you think warrantless surveillance should be reined in rather than massively expanded, PLEASE USE THIS CALL TOOL ASAP (click below or call 202-899-8938) & leave a message if you get VM. 1/21 https://t.co/HAOHURZoJQ
— Elizabeth Goitein (@LizaGoitein) April 12, 2024
Members of the House Judiciary Committee, meanwhile, will offer an amendment that would require U.S. intelligence agencies to obtain a warrant before surveilling American citizens' communications under Section 702—a change opposed by the Biden White House.
The Congressional Progressive Caucus (CPC), led by Rep. Pramila Jayapal (D-Wash.), formally endorsed the amendment on Thursday after a membership vote. More than two-thirds of the CPC's membership voted in favor of endorsing the amendment.
"In 2022 alone, the FBI exploited Section 702 more than 200,000 times to search for Americans' data, circumventing the Fourth Amendment and betraying public trust," the caucus said in a statement. "These searches unjustly targeted individuals, including Members of Congress, 141 Black Lives Matter protesters, 19,000 donors to a congressional campaign, a local political party, tens of thousands of people involved in 'civil unrest,' visitors to FBI offices, and individuals based solely on their race. The House has voted multiple times to end this practice of performing backdoor searches on Americans with strong bipartisan support."
Jayapal wrote earlier this week that Congress "must reform Section 702 to include a warrant requirement if the intel community wants to spy on Americans. Period."
The House's latest attempt to extend Section 702 comes after Rep. Mike Turner (R-Ohio), the chair of the HPSCI, attempted to tip the scales in favor of continued warrantless spying by warning of a "serious national security threat" in an ominous February statement.
It quickly became clear that the Ohio Republican's statement referred to U.S. intelligence—gathered with Section 702 authority—indicating that Russia has made significant progress on a space-based nuclear weapon purportedly designed to target American satellites, which lawmakers have known about for years.
"Unfortunately, the House Intelligence Committee has tripled down on misleading their colleagues and pushing forward Patriot Act 2.0, all while fighting to expand suspicionless digital strip searches of immigrants and the already extremely broad definition of foreign intelligence information," Sean Vitka, policy director of the advocacy group Demand Progress, said in a statement ahead of Friday's vote.
Vitka expressed support for the House Judiciary Committee amendment, saying it would "create the first meaningful privacy protection against Section 702 spying since its enactment."
"We will continue to ensure that everyone in Congress knows that their constituents demand it," Vitka added.
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It's Been Two-Hundred Years, Not Twenty: Targeted Repression in the US Started Long Before 9/11
There is a terrible theme that runs throughout the story of the United States: when a group of people are seen as a threat, state power has been used to oppress them.
Sep 24, 2021
What comes after the anniversary of a tragedy? Earlier this month, many of us participated in memorials and retrospectives on the changes to American society in the two decades since the attacks of 9/11. We were among the many American Muslims who wrote about the impact of 9/11 on civil rights. As co-executive directors of Muslim Advocates, we were asked to document how the Patriot Act enabled mass surveillance and profiling of Muslims by local and national government, how a Bush-era immigrant registration program (NSEERS) effectively created a Muslim registry, and the many ways that the stereotype of Muslims as terrorists has fueled decades of anti-Muslim hate crimes and bullying. So what comes next?
Profiling, surveillance and over-prosecution of marginalized populations in this country are nothing new.
After 9/11, we were part of a group of Muslim lawyers who helped create a Muslim legal advocacy organization because we knew that things could get much worse for American Muslims. We knew and took seriously the way this country has discriminated against Black Muslims and other marginalized communities.
Simply put, profiling, surveillance and over-prosecution of marginalized populations in this country are nothing new. Trump's frenzy about an "invasion" of gangs across our southern border was not all that different from Democratic politicians' warnings about "super predators" during the passage of the 1994 crime bill. Martin Luther King, Jr. and Malcolm X were just two of many civil rights leaders under constant FBI surveillance, and the Black Panthers were targeted with the blunter, more violent end of that stick. Many in our families were alive when Japanese Americans were sent to internment camps upon zero evidence of wrongdoing. Anti-German sentiment led to bans against teaching the German language and COINTELPRO and the McCarthy hearings painted anyone with communist beliefs as an enemy of the state. Even further back in our history, the Chinese Exclusion Act explicitly banned an entire race from emigrating to this country, and Jim Crow laws did everything short of slavery to control non-whites. And of course, all of this took place on the land of the many Native peoples who were killed or forcibly removed from their homes over centuries of repeated falsehoods and betrayal by the United States government.
So, yes, it has been twenty years since 9/11. But it has also been 77 years since Korematsu, 100 years since the Tulsa massacre, 131 years since the massacre at Wounded Knee, 139 years since the passage of the Chinese Exclusion Act and 199 years since the Denmark Vesey rebellion. In other words, we need to see the bigger picture. We believe something much more transformative is possible if we demand that post-9/11 reflections are connected to the rest of American history and that we learn from all of it.
There is a terrible theme that runs throughout the story of the United States: when a group of people are seen as a threat, state power has been used to oppress them. More specifically, political interests have built and solidified their power by ramping up fear--not just stoking a fire, but creating it. American communities are thus pitted against each other, and eventually there is public support for government overreach that is outrageously outsized to the supposed threat.
Monuments and memorials should help us learn about our history and grow from it. When we were asked to opine about all the ways American Muslims suffered in the aftermath of 9/11, we knew it wasn't enough. We want to also talk about what this means for today. What does this mean for oppression in all its forms right now? And then the really difficult question: are we complicit in any of it?
Abuse of power hurts not just the abused, but also the abuser. Everyone needs to heal from these past harms, so we all must ask these questions. We could start on anniversaries. What if every commemoration of every atrocity was a step on a path toward truth and reconciliation? Maybe, then, we could see our way out of this dangerous cycle, heal the fractures in our society, and finally write a new American story.
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The Secrecy and Unaccountability of the Surveillance State Delegitimizes the Government and Undermines Trust
This warrantless mass surveillance of people in the United States—often capturing information on millions of innocent Americans, with disproportionate impacts on communities of color—fuels resentment against the government from both ends of the ideological spectrum.
Mar 15, 2021
President Joe Biden has an unprecedented opportunity to restore faith in America's intelligence agencies--if he seizes this opportunity to make a clean break with the practices of the past 20 years.
The era begun on 9/11 featured the growth of government secrecy, mass surveillance, and misplaced priorities. Hundreds of millions of Americans' information can now be captured by the FBI and National Security Agency simply because a person knows someone overseas--or a legal U.S. immigrant. As recently as 2015, the Department of Justice and NSA argued they didn't need a warrant to acquire the records of calls of all people in the United States based on the mere notion that some records could be relevant to foreign intelligence.
This warrantless mass surveillance of people in the United States--often capturing information on millions of innocent Americans, with disproportionate impacts on communities of color--fuels resentment against the government from both ends of the ideological spectrum. The ongoing deployment of facial recognition systems across the nation, for instance, alarms us all. The secrecy and unaccountability of the surveillance state delegitimizes the government and undermines trust.
Every administration for over two decades has undermined congressional efforts to understand surveillance practices and their legal justifications.
President Biden should take several corrective steps to take us back to constitutional surveillance practices. Recall that the FISA Court ordered the FBI to address issues that tainted the Carter Page investigation, followed by a DOJ inspector general audit that found pervasive problems affecting each of 29 sampled FISA applications. Attorney General William Barr responded with guidelines and guardrails for the Department of Justice for investigations of political campaigns and candidates.
- The Biden administration should build on these guidelines, ensuring that investigations targeting someone in the United States benefit from these expanded rules. President Biden should urge Congress to enshrine them in law as well.
Every administration for over two decades has undermined congressional efforts to understand surveillance practices and their legal justifications. In July 2020, Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt., wrote a letter to Barr and then-Director of National Intelligence John Ratcliffe demanding to know to what extent the executive branch believes it has the inherent authority to spy on people in the United States. They received no response.
Previous administrations have misled the public and Congress about the extent of spying on Americans without congressional authorization or a court order. Now, a bipartisan cross section of lawmakers on Capitol Hill led by Reps. Pramila Jayapal, D-Wash., and Warren Davidson, R-Ohio, is demanding answers. Yet we now have reports (and one agency has confirmed) that the government is circumventing the courts and Congress and purchasing countless pieces of information about Americans from data brokers.
As former members of Congress, we followed up with a Freedom of Information Act request to push this fact-finding mission forward. Is the government hiding dragnet surveillance of Americans? Is such surveillance occurring without congressional or court authorization? Like Sens. Lee and Leahy, Reps. Jayapal and Davidson, and their many allies on the Hill, we have received no response. Demand Progress Education Fund and the Project for Privacy and Surveillance Accountability have just filed suit to compel disclosure.
- The Biden administration should commit only to spying on people in the United States pursuant to congressional and court authorization and support a congressional vote on the issue.
One year ago this week, Congress allowed Section 215 of the Patriot Act to expire. Section 215 is known as the "business records" provision and granted the government warrantless access under the banner of national security to our personal information held by businesses.
On the eve of Section 215's expiration, Sen. Richard Burr, then chairman of the Senate Intelligence Committee, took to the chamber floor to say that the executive branch has the inherent authority to surveil American citizens under an executive order known as 12333: "The president under 12333 authority can do all of this, without Congress's permission, with no guardrails." This lawless theory of executive power belongs in the distant past. Has it returned, assuming it was ever really abandoned in the first place?
- The president should endorse legislation that makes clear congressional or court authorization are the exclusive means for acquiring information about people in the United States. A good step would be to endorse Sen. Ron Wyden's upcoming The Fourth Amendment Is Not For Sale Act, which forbids buying our information from data brokers and would finally halt the shell game that some in government play with domestic surveillance authorities.
While threatening to veto FISA reauthorization legislation in May 2020, then-President Trump said that "warrantless surveillance of Americans is wrong." Taking the steps we've outlined would cement Joe Biden as the people's civil liberties ally that Donald Trump never became. The new administration has the opportunity to become that ally by providing honest answers about, and taking action on, the legitimate surveillance concerns that have dogged the American people since at least the start of this century.
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