Washington, DC (Jan. 18, 2018) – Today, the Senate passed S. 139, the Foreign Intelligence Surveillance Act (FISA) Amendments Reauthorization Act of 2017, codifying warrantless surveillance of Americans into law. The FISA Amendments Reauthorization Act of 2017 reauthorizes Section 702 of FISA, which was intended to target the communications of non-U.S. persons overseas, but often captures purely domestic communications. The National Association of Criminal Defense Lawyers (NACDL) is deeply concerned by the passage of this Act and the associated implications on Fourth Amendment rights.
"NACDL is profoundly disappointed that the U.S. Senate today joined the U.S. House of Representatives in voting to expand the surveillance power of the executive branch," said NACDL President Rick Jones. "Instead of using this moment to assess and reform this wide reaching surveillance program, bringing it in line with critical constitutional protections, Congress chose instead to broaden the impact of the program on people presently in the United States. Enactment of this bill will result in the erosion of Fourth Amendment rights. The defense bar remains as steadfast as ever in protecting people's constitutional rights and serving as a critical check on governmental overreach."
Instead of reforming overreaching and excessive powers under Section 702, including the collection of domestic communications without warrants, Congress expanded and codified them into law. This legislation reauthorizes U.S. warrantless surveillance under Section 702 until 2024. It also codifies the backdoor search loophole that allows the government to search the information collected under Section 702 for domestic investigations without meaningful limitation. Additionally, the bill allows for the practice referred to as "about" collection, whereby the government collects even purely domestic communications merely because they mention a target of Section 702 collection.
NACDL has repeatedly called for meaningful reforms of the U.S. government's vast surveillance powers. Previous statements on proposed legislation that attempted to bring Section 702 surveillance in line with constitutional protections can be found here and here.
The full text of the Senate bill is available here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.