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Honorable Mark Sanford

Representing the 1st District of South Carolina

Vote Notes: S.139, FISA Amendments Reauthorization Act of 2017

Jan 11, 2018
Blog Post

Today was a big day.

Just like American military officers, Members of Congress swear an allegiance to uphold the Constitution. Legitimately, people have differences of opinion as to what that means, but we had a significant constitutional debate today and over the last few days about one of its foundational elements.

The Fourth Amendment to me is incredibly clear as it says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Founding Fathers were so deliberate in this amendment to limit the reach of government. Without probable cause and a warrant, government couldn’t reach into your personal effects. Government’s ability to do so has been made much easier in the digital age, but the Founding Fathers believed there were places that government couldn’t and shouldn’t go without a warrant. This belief was based on their experience in colonial times of British officers coming into a home and searching until they found something to charge the patriots with. The principle of this constitutionally-enshrined limit on government should be just as real today as it was then. In short, I believe that civil liberty is a cornerstone to the bundle of rights that go with the liberties our Founding Fathers promised us.

That was not the prevailing opinion, though 58 Republicans believed as I did today in voting yes for the so-called “Amash amendment.”

More specifically, in chronicling today’s activities, the House voted on S.139, a bill that reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) of 1978. The bill passed in a 256 to 164 vote. I voted no for a few reasons that I have listed below, but the centerpoint of today’s debate was indeed on an amendment offer by Rep. Justin Amash. This amendment originally came in bill form - called the USA RIGHTS Act, and I’m a cosponsor of it, given I believe it would have fixed many of the problems with FISA. I was joined in this bipartisan effort by 24 of my House colleagues along with people like Senator Rand Paul and Senator Ron Wyden, who stood with us in a press conference just yesterday.

Currently, FISA allows intelligence agencies to collect the electronic communications of foreign persons. However, not all of the electronic communications collected by agencies are those of foreign persons. With little oversight, this data can then be searched without a warrant and used for a wide range of purposes - including domestic criminal prosecutions - unrelated to foreign intelligence.

According to a 2014 Washington Post report, 90 percent of people whose communications were collected were not the intended targets. Many of them were Americans, and nearly half of the surveillance files contained names, email addresses, or other details that the NSA marked as belonging to U.S. citizens or residents. But even more important is the fact that we really have no clue how many Americans are caught up in this surveillance activity. And to worsen the situation, the intelligence community routinely refuses to provide the American public with this information. The point here is that oversight of a major program with clear civil liberties implications is impossible.

The amendment we offered - the USA RIGHTS Act...or “Amash amendment” - would have fixed significant problems while allowing the intelligence community to do its job and conduct foreign surveillance. It would have in no way prohibited the interception of information on non-U.S. citizens. It wouldn’t have even interrupted the first basket of information gathering that would have included Americans...and, in that regard, represented a compromise. It simply prevented intelligence agencies from accessing any of the information caught up in their data sweeps without a warrant, if the person was a U.S. citizen.

Specifically, it would have prohibited the reverse targeting of Americans, where the government “targets” a foreigner’s communications largely for the purpose of sweeping in an American’s communications. It would have required approval from the Foreign Intelligence Surveillance Court for the government to force American companies to assist with surveillance and any assistance they provide to be necessary and narrowly tailored.

In 2013, it was discovered that the NSA was collecting the telephone records of millions of US customers of Verizon under a top secret court order. The order required Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. In this order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls.

I’ll leave you with this one thought. There will always be a tension between freedom and security in a developed society. Unfortunately, the societies that have focused solely on security over freedom have lost both. In fact, Historian Edward Gibbon, who is chiefly remembered for his writings called “The History of the Decline and Fall of the Roman Empire,” addressed similar concerns back in the 18th Century - making this issue seem uncomfortably relevant today.

In his analysis of the fall of Greece in looking at the fall of Rome, he wrote: “In the end, more than freedom, they wanted security. They wanted a comfortable life, and they lost it all - security, comfort, and freedom.”

The battle continues, but today, I believe, was a loss in the larger tug-of-war toward freedom, and I’d love to hear your thoughts.