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But that's not likely to fly in the Senate

House reauthorizes Patriot Act’s Section 702 without privacy amendments

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By —— Bio and Archives January 11, 2018

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House reauthorizes Patriot Act's Section 702 without privacy amendments
The Patriot Act has been a flashpoint ever since it was first past in the aftermath of 9/11, particularly Section 702. This is the section that authorizes the government to conduct surveillance on U.S. citizens whom it suspects may be involved in conversations with foreign enemies. We’ve heard a lot about this in recent months as it appears the FBI may have abused this process to gain approval for a wiretap of Trump campaign official Carter Page.

The act came up for reauthorization today - as it must every five years - and a bipartisan group in the House wanted to amend Section 702 to offer stronger Fourth Amendment protections for citizens, particularly on the matter of “unmasking.” This involves reports on surveilled communications in which the names of innocent parties are supposed to be redacted. But as we found out during the latter days of the Obama Administration, many such names were unmasked at the rest of White House officials who really had no business doing so.

The amendment was defeated, and the House reauthorized Section 702 in its existing form.

It doesn’t look like the same thing will happen in the Senate, however, where Republicans now cling to a tiny 51-49 majority - and there are already two Republicans unwilling to pass reauthorization without the privacy amendment being added back in:

Sen. Rand Paul said he plans to filibuster the reauthorization of Section 702 of the Federal Intelligence Surveillance Act (FISA) if necessary, as the House prepares to vote on a six-year extension of the program.

Section 702, which allows the intelligence community to monitor foreign communications, is set to expire January 19. Critics of the program argue that it allows the warrantless collection of US citizens’ private information.

“My worry is that they also collect information on millions of Americans, and I don’t want that database to be searched without a warrant,” the Kentucky Republican said.

He added, “I will filibuster and do whatever to stop that.” Paul said he would vote to reauthorize Section 702, however, if there are protections in place for Americans’ private information, and added that he supports the USA Rights Act, another amendment to the program proposed by Rep. Justin Amash, R-Michigan.

Paul’s objection appears to be without merit. The unmasking of Trump transition officials during the latter days of the Obama Administration had nothing to do with Section 702, and they certainly weren’t authorized under Section 702. It was a matter of Obama officials - particularly outgoing UN Ambassador Samantha Powers - abusing their access to the information for political purposes. No law could have stopped that from happening because they were already flouting existing law with their actions.

And the so-called “USA Rights Act” does a lot more than prohibit unmasking. It severely curtails the government’s ability to conduct surveillance by prohibiting surveillance of conversations that are merely about a terror suspect, as opposed to those in which the suspect is a participant. It also delays the process of getting legitimate FISA wiretap authorizations by forcing the government to come up against a “constitutional advocate” who will basically serve as a terror suspect’s lawyer in the matter.

We shouldn’t minimize the seriousness of wiretaps in criminal cases. They need to be approved only when there is probable cause and only when there’s a reasonable belief that a serious crime is being committed, or that a threat is looming. But forcing law enforcement to jump through extra hoops like this, especially when time is of the essence, is an unprecedented step we don’t take at any level of government in this country. The fact of the matter is that the FISA court itself has the job of ensuring the Constitution is being followed.

But the fact that the objection has no merit may not matter. Senator Mike Lee of Utah has said he intends to join Paul in his filibuster unless the amendment is restored to the bill, and unless the Republicans hold the rest of their caucus together and get at least 11 Democrats to join them, it might be necessary to give Paul what he wants and weaken law enforcement’s tools in the fight against terrorism.

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