Democrats should take the initiative in ending warrantless surveillance

Jan. 19 isn’t only a deadline for funding the government — it’s the expiration date of the most sweeping surveillance law in American history: Section 702 of the FISA Amendments Act. Thanks to a strong showing by congressional libertarians, Section 702 will end without significant support from Democrats, which means all eyes will be on a party that has loudly trumpeted its resistance to outrageous executive action under President Trump.

This means Democrats have an unusual amount of power as Congress debates an issue of enormous importance to activists and communities of color — constituencies that rely on Democrats in the face of explicit targeting by the Trump administration, and which in turn Democrats in Congress rely on for political support.

Under Section 702, the government collects hundreds of millions of communications annually on over 100,000 targets that are supposed to be foreigners located outside of the United States. Because of how the collection occurs, the government sweeps up a massive amount of American information as well. We’d love to know how much, but the government refuses to count. Which, yes, is terrifying.

{mosads}What we do have is an independent audit of 702 data, which found that 90 percent of people affected by 702 collection were not the actual target, and that “[n]early half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents.” Those intended targets float in a sea of intensely personal information. Your medical records, your personal relationships, your financial information, and more.

Based on this alone, Section 702 should be ended, because mass surveillance is unimaginably dangerous.

Every person worried about the targeting of Trump’s political opponents, of communities of color, of activists — everyone who remembers that the FBI tried to push Martin Luther King Jr. into suicide — should realize that government abuse of power like this is real and recent. And we know the kinds of communities the government is most likely to target.

These problems are multiplied by how federal agencies, in particular the FBI, use the data. According to the government’s own Privacy and Civil Liberties Oversight Board, “[w]hen an FBI agent or analyst initiates a criminal assessment or begins a new criminal investigation related to any type of crime, it is routine practice […] to conduct a query of FBI databases […] including data collected under Section 702.”

FBI agents search this information based on tips. Which means they not only search for Americans’ information without a warrant, they do it without any real evidence of a crime. The Constitution prohibits these kinds of fishing expeditions.

If an agent ends up finding evidence of a crime — even a crime that has nothing to do with national security — that evidence can be shared with domestic law enforcement, can be used against you in court, and the government may hide where this information came from because it wouldn’t be able to defend all this in court. This secrecy and deception is one of the primary reasons the government has gotten away with all this without real scrutiny from traditional courts.

This all points to an immeasurably weaker right to privacy, an attenuated Fourth Amendment, and a less-American America. It’s as unacceptable now as it ever was. This isn’t about agents or analysts acting in bad faith or doing something illegal. This is just how 702 works. This is why mass surveillance is always an incredibly dangerous proposition.

And now, President Trump and Attorney General Jeff Sessions have the keys to surveil the kingdom using the most powerful surveillance apparatus in history.

Some Democrats have forgotten who they work for and cloak their pro-surveillance activities in TV-friendly platitudes about the resistance. But the hundreds of thousands of people calling on Congress for real reform of Section 702 know better. Progressives will hold Democrats who support the continuation and expansion of this authority to account in 2018. Demand Progress, like many organizations fighting to keep our democracy alive, has endorsed the USA RIGHTS Act as the only effective antidote to these problems — shy of that bill, Congress, and especially Democrats, should let Section 702 expire.

Sean Vitka (@SeanVitka) is policy counsel for Demand Progress, a nonprofit group focused on issues of civil liberties, civil rights, and government reform.