Sending Office: Honorable Zoe Lofgren
S. 139 FISA Reauthorization Act, as supported by the Trump Administration, would renew and expand a program that seizes vast amounts of US Person communications and data.
These US Persons
don’t need to be talking to terrorists, they just need to be talking to or about someone overseas that the NSA deems a good target for gathering information for conducting foreign affairs. Think trade agreements, journalist investigations,
or foreign politics.
This violation of Americans’ 4th Amendment rights is not fixed by S. 139.
The argument that S. 139 requires the FBI to get a warrant before searching the 702 database for criminal investigations
is incredibly misleading, to the point of being a parody of reform.
It’s fake reform
The requirement is so narrow that in practice it will never be used.
In fact, the FBI said as much to Judiciary Ranking Member Nadler when he discussed it with them.
The warrant requirement
only kicks in when there is a “predicated criminal investigation”. For those not fluent in the DOJ’s Investigations Handbook,
a predicated criminal investigation is not the first step, it’s the last.
Every day, FBI agents will be allowed to do thousands of searches
without a warrant. This is the definition of a fishing expedition.
S. 139 is
not reform, it violates Americans’ rights.
The Amash-Lofgren USA RIGHTS amendment would prevent all of this by requiring that before the NSA or FBI can search their 702 data to find the communications of
a person within the US they must get a warrant.
Here’s what the amendment does
If the NSA or FBI through their normal course of reviewing the communications of a target stumble across a communication from a US Person that appears to indicate an imminent terrorist
attack, they do not need a warrant to do more searches on that person because of the emergency exception.
If the NSA or FBI find an email address in the pocket of someone they’ve arrested, if they don’t
know that the email address belongs to a US person, then they do
not need a warrant to search for it in 702 data.
The FBI does
not need re-erect pre 9/11 database walls, the amendment allows searches to peek at 702 data in order to disregard it if there isn’t a warrant, without violating the prohibition.
The NSA, today, is capable of selectively querying their data without re-erecting pre-9/11 walls, the FBI should be able to do it too.
e-Dear Colleague version 2.0