Section 702 of the Foreign Intelligence Surveillance Act allows the intelligence community to collect intelligence on non-Americans outside the United States without a warrant. As the intelligence community hoovers up huge quantities of data (they just built a new facility in Utah so that they could bring enough storage online to hold all the data), it is inevitable that they will collect information on Americans, absent a warrant, absent probable cause. They say there are controls in place to protect Americans, but those controls do not, some say, match the requirements of the Fourth Amendment to the U.S. Constitution.
The Congress, in 2008, had the wisdom to require that Section 702 be renewed every few years. The result of that is to force a debate and make Congress-critters go on record voting for or against whatever the revised 702 requires. The last vote to renew Section 702 was in 2012 and it is set to expire on December 31, 2017, about 7 days from now.
In Congress there are several different factions right now:
- One group wants to renew Section 702 as is and make it permanent.
- Another group wants to require the FBI to get a court order before viewing information on Americans – information that they hope to use in criminal cases.
- Others want the FBI to go to the Foreign Intelligence Surveillance Court to weigh in on the legality of query on Americans, pretty much a rubber stamp approval.
- Finally others want to scrap it entirely.
So Congress does what it does best and renewed Section 702 for another 28 days and went on vacation.
Congress, is on vacation until January 8th and with absolutely no agreement on what to do and only 10 days between when Congress returns and the expiration, do not be surprised if Congress kicks the can down the road again and extends it another 30 days.
Unlike some bills in Congress, this is not an Elephants vs. Donkeys issue; this is a privacy rights vs. national security issue.
The House Freedom Caucus Chairman told the media that no long term extension would get through Congress at this time.
Republican Sen. Rand Paul and Democratic Sen. Ron Wyden want to bring the fight to the floor.
My personal opinion is that Congress is unlikely to let Section 702 expire. I just don’t think that is going to happen. But what form of restrictions are going to be put in place – that is a much harder question to answer.
Information for this post came from the Washington Post.