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Sen. Feinstein Supports "Backdoor" Warrants, So Why Don’t Reps. Nunes and Schiff?

DEEPLINKS BLOG
November 5, 2017

As the deadline for renewing and reforming key portions of the NSA’s spying apparatus looms less than two months away, two of the most important members of the House Intelligence Committee have stayed remarkably quiet in the conversation.

Congress just introduced multiple bills to extend Section 702 of the Foreign Intelligence Surveillance Act, a law that authorizes controversial NSA surveillance programs and is set to expire at the end of this year. Some of the bills include various ways to fix what is called the "backdoor search" loophole. Currently, the NSA "incidentally" collects the communications of countless Americans and stores those communications in vast databases. The FBI routinely searches through these databases for information about U.S. citizens and lawful permanent residents. The FBI does not obtain any probable cause warrants for these searches, skirting Fourth Amendment protections and earning these searches the title of "backdoor searches."

Two California representatives are key to this debate: Rep. Devin Nunes (R-Calif.), the Chair of the House Permanent Select Committee on Intelligence, and Rep. Adam Schiff (D-Calif.), the Ranking Member. The House Intelligence Committee has a responsibility to oversee the intelligence agencies that use Section 702 to justify surveillance.

Rep. Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.) introduced the USA Liberty Act last month. They are respectively the Chair and Ranking Member of the House Judiciary Committee, which oversees surveillance that may impact Americans. The bill includes a few surveillance reforms, including a requirement that FBI agents must obtain a warrant to access Section 702-collected content in criminal investigations.

Other California elected officials have taken a stand for limiting the NSA’s spying powers. Sens. Dianne Feinstein (D) and Kamala Harris (D) made waves by introducing an amendment in the Senate Select Committee on Intelligence last week to shut the backdoor search loophole. 

Sen. Feinstein’s position was clear: "The Fourth Amendment of our Constitution provides basic privacy rights for all Americans. I believe the Supreme Court has been clear that in order to access the content of an American’s communications, the government is required to get a probable cause warrant. The same standard should apply to Section 702."
While we have criticized Sen. Feinstein's support for Section 702, we appreciate her opposition to warrantless backdoor searches now.


Many members of Congress are rightly revisiting prior support for unchecked surveillance powers. Sens.  Feinstein and Harris may be responding to the concerns of their California constituents, as Californians have a long history of supporting privacy and civil liberties

In 2015, Governor Jerry Brown signed into law the California Electronic Communications Privacy Act, which bars state and local government agencies from compelling companies to hand over digital communications, or otherwise acquiring such data, without first obtaining a warrant. More than a decade earlier, California passed a law that required websites and online services to publicly post their privacy policies online. And in 1972, California amended its constitution to enshrine privacy as a right:

"All people are by nature free and independent and have inalienable rights.  Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

As the Los Angeles Daily News editorial board wrote this week, “the mere invocation of ‘national security’ does not, and should not, suspend the constitutional rights of Americans.” The editorial board continued: “If the information of Americans must be collected, the NSA and other federal agencies should get a warrant to do so, as the Fourth Amendment demands.”

Many members of Congress who supported NSA surveillance programs in the past may be updating their positions because they are concerned about a vast and intrusive NSA intelligence apparatus helmed by President Trump. As Michelle Richardson of the Center for Democracy and Technology has written, we know significantly more about NSA surveillance programs today than we did when Section 702 was last taken up by Congress:

Lawmakers should be very concerned about its scope, lack of privacy protections, and near-constant compliance problems. Legislators who supported the program before should feel free to change their minds.

Reps. Nunes and Schiff have a rare and powerful opportunity to align the national discourse on digital surveillance tools with the interests of the Californians they represent. They can help end warrantless "backdoor" searches.

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