Sen. Wyden: FISA’s ‘general warrants’ are like the ‘Writs of Assistance’ the founding fathers despised
Senate Majority Leader Harry Reid (D-NV) today opened debate into the renewal of the Foreign Intelligence Surveillance Act Amendments by allowing one of the statute’s most vocal critics, Sen. Ron Wyden (D-OR), to opine about the “the constitutional teeter-totter, with the security and well-being of all of us on this side and individual liberties on this side” that the Senate must weigh in the course of the debate.
Wyden began his remarks with a history lesson of the nation’s early days, when British authorities issued “Writs of Assistance” to allow constables and customs officers to search any house or building in an effort to eliminate colonists’ tax-avoiding smuggling. “The problem, of course, is if you let government officials search any house that they want, they’re going to search through the houses of a lot of people who haven’t broken any laws,” Wyden said. But, he noted, “The colonists said it’s just not okay to go around invading people’s privacy unless you’ve got some specific evidence that they’d done something wrong,” and “The fact that English officials went around invading people’s privacy without any evidence against them was one of the fundamental complaints the American colonists had against the British government” prior to the Revolutionary War.
“So naturally,” he said, “our founding fathers with the wisdom they showed on so many matters made it clear that they wanted to address this particular complaint when they wrote the bill of rights.” In fact, Wyden offered, “[The Fourth Amendment] was a direct rejection of the authority that the British had claimed to have when they ruled the American colonies: the founding fathers said that our government does not have the right to search any house that government officials want to search, even if it helps them to do their job.”
“For more than 200 years,” Wyden added, “this fundamental principle has protected Americans’ privacy while still allowing our government to enforce the law and protect public safety.”
To those that would argue that the Constitution’s architects were silent about the Internet and thus their guarantees of personal privacy need not apply, Wyden also had a rebuke. “Certainly, the Founding Fathers could never have envisioned Tweeting, Twitter, and the Internet and all of these extraordinary technologies,” he acknowledged. “But what we have seen as technology has continued to bring us this treasure trove of information all of these spectacular opportunities the Founding Fathers never envisioned, we saw time and time again the Congress and the courts were most successful when they returned to the fundamental principles of the Fourth Amendment.”
Wyden then proceeded to quote Justice Louis Brandeis’ dissent in the 1928 Olmstead v. United States, both for its vociferous advocacy in favor of personal privacy and to note that, though it was a dissenting opinion in 1928, the courts and Congress eventually agreed that technology does not negate fundamental rights. “Justice Brandeis said the right of the people to be left alone by their government is the most comprehensive of rights,” Wyden summarized, “And, what he said, the right ‘most valued by civilized men.'” So “As we look today’s debate,” Wyden added, “it’s so important that we recognize what Justice Brandeis said about the value of getting it right when it comes to liberty, when it comes to individual freedom.”
Wyden noted that, despite being a member of the Intelligence Committee when the Bush Administration devised and implemented its warrantless wiretapping program, he — like most Americans — read first about its existence in the New York Times. “There was a very heated debate, [and] Congress passed the FISA Amendments Act of 2008 and that was to replace the warrantless wiretapping program with new authorities for the government to collect the phone calls and emails of those believed to be foreigners outside the United States.” But despite provisions which its advocates claimed would protect Americans from unconstitutional searches, Wyden says the loophole built into what is now Section 702 has allowed the government to intrude on Americans’ privacy.
“Unlike the traditional FISA authorities and unlike law enforcement wiretapping authorities, section 702 of the FISA Amendments Act does not involve obtaining individual warrants,” Wyden explained. “Instead, it allows the government to get what’s called a programmatic warrant, lasts for an entire year, and authorizes the government to collect a potentially large number of phone calls and emails with no requirement that the senders or recipients be connected to terrorism, espionage, the threats that we are concerned about.”
“If that sounds familiar,” he added, “It certainly should. General warrants that allowed government officials to decide whose privacy they would invade were the exact sort of abuse that the American colonists protested over and led the Founding Fathers to adopt the Fourth Amendment in the first place.”
“It is never okay, never okay for government officials to use a general warrant to invade the privacy of a law-abiding American,” Wyden stated. “It was not okay for constables and customs officials to do it in colonial days, and it is not okay for the National Security Agency to do it today.”
But, he said, they are nonetheless doing so. “This law doesn’t actually prohibit the government from collecting Americans’ phone calls and emails without a warrant,” he said, because “the FISA Amendments Act states that acquisitions made under Section 702 may not ‘intentionally target a specific American,’ and may not ‘intentionally acquire communications that are known at the time of acquisition to be wholly domestic,'” which Wyden considers too large a loophole.
“It still leaves a lot of room for circumstances under which Americans’ phone calls and emails, including purely domestic phone calls and emails could be swept up and reviewed without a warrant,” he said, which “can happen if the government didn’t know that someone is American, or if the government made a technical error, or if the American was talking to a foreigner even if that conversation was entirely legitimate.”
Not only could it happen, he said, but it has happened. “The FISA court has ruled at least once that collection carried out by the government under the FISA Amendments Act violated the Fourth Amendment of the Constitution. Senate rules regarding classified information prevent me from discussing details of that ruling or how many Americans were affected over what period of time, but this fact alone, Mr. President, clearly demonstrates that the impact of this law on Americans’ privacy has been real and it is not hypothetical.”
Wyden and some of his colleagues are proposing that the Administration be forced to calculate and reveal the exact number of Americans whose privacy his been violated by Section 702, in addition to other changes designed to “rebalance” Wyden’s teeter-totter.
Watch the full speech, first uploaded on C-SPAN, below.