On June 20, the House of Representatives passed a defense spending bill with an amendment that would substantially strengthen the privacy protections of American citizens in the context of foreign intelligence surveillance. The amendment, which passed by an overwhelming bipartisan vote of 293-123, should be quickly and enthusiastically approved by the Senate and then signed into law by President Obama.
Complicating matters, the Privacy and Civil Liberties Oversight Board, which makes recommendations to Congress about such matters, just issued a deeply disappointing report that does not go as far as the House’s enactment. That report is simply wrong, and should be rejected. Let me explain.
Most of the focus in the United States about National Security Agency surveillance programs has been on the section 215 telephone metadata program, which directly involves the collection of phone records of American citizens. The vast majority of NSA foreign intelligence programs, however, are directed at people who are not U.S. citizens and who are not in the United States. They are directed, in short, at potential foreign terrorists.
Because of the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA) of 1978, when an individual is present inside the United States, the government is not permitted to search his home, open his mail, wiretap his phone, or read his emails without first obtaining a warrant from a judge based on a finding by the judge that there is probable cause to believe that the intrusion on personal privacy is likely to reveal information relevant to a criminal or foreign intelligence investigation. That same rule applies when the government wants to investigate an American citizen who is outside the United States. In that case, the NSA must first obtain a warrant from a judge on the Foreign Intelligence Surveillance Court.
On the other hand, under section 702 of FISA, if the person being investigated isnot an American citizen and is reasonably believed to be located outside the United States, the NSA can intercept and collect his communications if the NSAfinds that there are reasonable grounds to believe that the target’s communications might contain information relevant to international terrorism. It doesn’t need a warrant.
The lower standard for surveillance of individuals in this situation is justified on the ground that a nation has special obligations to its own citizens that it does not necessarily owe to citizens of other nations. The analogy is to a family, which has responsibilities to family members that are different from its responsibilities to persons outside the family. Every nation follows this approach. There are, of course, good reasons to respect the privacy rights of citizens of other nations, both in terms of basic human rights and in terms of our own national self-interest, and it may be that the authority given to the NSA to intercept and collect the communications of non-Americans who are outside the United States should be reconsidered. But that is a subject for another day.
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