Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

In the Senate Judiciary Committee’s markup of the FISA Amendments Act, Mike Lee, Dick Durbin, and Chris Chris Coons just tried, unsuccessfully, to require the government to get a warrant before it searched US person communications collected via the targeting of non-US person under the FISA Amendments Act. It was, as Dianne Feinstein said, not dissimilar from an amendment Ron Wyden and Mark Udall had tried to pass when FAA was marked up before the Senate Intelligence Committee.

The debate revealed new confirmation that the government is wiretapping American citizens in the guise of foreign surveillance.

DiFi argued that the amendment would have impeded the government to pursue Nidal Hassan by delaying the time when they could have reviewed his communication (presumably with Anwar al-Awlaki). Of course, the amendment included an emergency provision that would have permitted such a search after the effect.

More telling, though, was Whitehouse’s response. He referred back to his time using warrants as a US Attorney, and said that requiring a warrant to access the US person communication would “kill this program,” and that to think warrants “fundamentally misapprehends the way in which this program operates.”

Now, I’d be more sympathetic to Whitehouse here if, back when this bill was originally argued, his amendments requiring FISC oversight of minimization after the fact had passed. They didn’t. To make things worse, though Leahy repeatedly talked about Inspector General reporting overdue on this program, Congress is not going to wait for these reports before they extend the program for another three years, at least. So Whitehouse’s assurances that we can trust minimization to protect US person privacy seems badly misplaced.

In any case, this represents an admission, as strong as any we’ve seen, that this program is entirely about collecting the US person communication of those who communicate with people (DiFi used the term “person of interest,” which I had not heard before) overseas.

Update: Updated to explain this came in a markup hearing. Thanks to Peterr for pointing out my oversight on that point.

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13 Responses to Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

Emptywheel Twitterverse
emptywheel @JasonLeopold To be fair, DOJ has been using CI tools to combat "cyber" for over a decade.
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emptywheel Fred Upton apparently wants campaign finance code where outside groups agree not to describe how GOP hurt seniors. http://t.co/DMuYqam8k0
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bmaz @jilliancyork All good, up and doing her morning routine of hopping around like a bunny rabbit.
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emptywheel @ColMorrisDavis Anyway, I'll believe it when they behead their first terrorist financier. And let us investigate al-Rajhi.
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emptywheel @ColMorrisDavis But they said this in 2004 and 2005 and 2007 and 2009 and 2010 and 2011 and 2012 and 2013.
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emptywheel Because nothing will make for better news programming than out-of-touch coastal elite in an RV "talking to voters." https://t.co/sQs2p3D9L7
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emptywheel Chuck Todd, w/health insurance so he doesn't think 500,000 people getting it anew is big deal, will Meet the Voters https://t.co/sQs2p3D9L7
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bmaz Amazing story shows why law enforcement use of "confidential informants" is so pernicious http://t.co/LaAAEgO0yP
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emptywheel @bmaz to be fair, PAA was birthed after all but Mueller moved on, and the problems came in part bc they changed things after Baker moved on
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bmaz RT @OrinKerr: Supreme Court denied cert in case on Davis good-faith exception to exclusionary rule, Aguiar v. US. Good news if you like exc…
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bmaz RT @EFF: In Smith v. Obama, the gov't seems to argue that the constitution has a national security exception. It doesn't: https://t.co/KZpY
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bmaz @emptywheel But, but, but....Hospital heroism!!
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