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FISA Accountability and Privacy Protection Act

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Brett Daniel Shehadey
Special Contributor for In Homeland Security

Senate Judiciary Chairman Patrick Leahy

Senate Judiciary Chairman Patrick Leahy (D-Vt) is introducing the FISA Accountability and Privacy Protection Act of 2013 to revise the PATRIOT and FISA Acts by assuring that any US citizens that are targeted for surveillance are engaging in or communicating with terrorists.

Senator Leahy said that: “As Americans we have the right to know what our government does and why…The comprehensive legislation I’m introducing today will not only improve the privacy protections and accountability provisions associated with these authorities, it’s going to strengthen oversight and transparency.”

The move is an attempt to empower the courts, protect innocent Americans from intrusion and take away any broad sweeping domestic intelligence gatherings like those leaked classified FISA court orders. The court orders required millions of Verizon’s American metadata phone records.

The bill is cosponsored by a bi-partisan group of senators, including: Richard Blumenthal (D-Conn.), Mike Lee (R-Utah), Jon Tester (D-Mont.), Mark Udall (D-Colo.) and Ron Wyden (D-Ore.).

If the bill passes, each warrant would need to be more individual, group or network based. It would target Section 215 of the PATRIOT Act and 702 of the FISA. This would require the criminal investigators or agents greater probable cause an avoidance to broad data collection practices carried out by government officials.

The Leahy legislation, if passed, would involve an inspector general for 215, address National Security Letters (NSLs) and transparency and sunset portions of those acts sooner so that Congress can re-evaluate them and potentially amend them.

This is not the first time that Senator Leahy has attempted greater provisions to ensure privacy of American citizens. His work on the Electronic Communications Privacy Act (ECPA) of 2012 required that law enforcement officials obtain a warrant for electronic data, as they would for wiretapping phones.

When the ECPA passed, Leahy said: “After decades of the erosion of Americans’ privacy rights on many fronts, we finally have a rare opportunity for progress on privacy protection.”

Among other things, critics argued that this was ineffective because under the Stored Communications Act, all emails on third-party servers are considered abandoned and do not require a warrant or subpoena process to search or obtain them. Since so many people leave their opened emails on big accounts like Gmail and Hotmail for periods much longer than 180 days, the ECPA of 2012 is not protecting their perceived privacy. But the counterargument is that the real debate was about email privacy and protections and not stored communications on another entity’s property (e.g. servers).

Whatever added privacy protections are added, most people are unaware of 18 U.S.C. 2518(7), “Procedure for interception of wire, oral, or electronic communications.” The law authorizes warrantless wiretapping or postponing wiretapping requirements in an emergency situation:

(a) an emergency situation exists that involves –
(i) immediate danger of death or serious physical injury to
any person,
(ii) conspiratorial activities threatening the national
security interest, or
(iii) conspiratorial activities characteristic of organized
crime, that requires a wire, oral, or electronic communication to be
intercepted before an order authorizing such interception can,
with due diligence, be obtained…

This applies to:

“Any investigative or law enforcement officer, specially designated by
the Attorney General, the Deputy Attorney General, the Associate
Attorney General, or by the principal prosecuting attorney of any
State or subdivision thereof acting pursuant to a statute of that
State.”

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