No sooner did the Protect Liberty and End Warrantless Surveillance Act pass the House Judiciary Committee with overwhelming bipartisan support than the intelligence community began to circulate what Winston Churchill in 1906 politely called “terminological inexactitudes.”
The Protect Liberty Act is a balanced bill that respects the needs of national security while adding a warrant requirement whenever a federal agency inspects the data or communications of an American, as required by the Fourth Amendment. This did not stop defenders of the intelligence community from claiming late last year that Section 702 reforms would harm the ability of the U.S. government to fight fentanyl.
This is remarkable, given that the government hasn’t cited a single instance in which warrantless searches of Americans’ communications proved useful in combating the fentanyl trade. Nothing in the bill would stop surveillance of factories in China or cartels in Mexico. If an American does become a suspect in this trafficking, the government can and should seek a probable cause warrant, as is routinely done in domestic law enforcement cases.
No sooner did we bat that one away than we heard about fresh terminological inexactitudes. Here are two of the latest bits of disinformation being circulated on Capitol Hill about the Protect Liberty Act.
Intelligence Community Myth: Members of Congress are being told that under the Protect Liberty Act, the FBI would be forced to seek warrants from district court judges, who might or might not have security clearances, in order to perform U.S. person queries.
Fact: The Protect Liberty Act allows the FBI to conduct U.S. person queries if it has either a warrant from a regular federal court or a probable cause order from the FISA Court, where judges have high-level security clearances. The FBI will determine which type of court order is appropriate in each case.
Intelligence Community Myth: Members are being told that under the Protect Liberty Act, terrorists can insulate themselves from surveillance by including a U.S. person in a conversation or email thread.
Fact: Under the Protect Liberty Act, the FBI can collect any and all communications of a foreign target, including their communications with U.S. persons. Nothing in the bill prevents an FBI agent from reviewing U.S. person information the agent encounters in the course of reviewing the foreign target’s communications.
In other words, if an FBI agent is reading a foreign target’s emails and comes across an email to or from a U.S. person, the FBI agent does not need a warrant to read that email. The bill’s warrant requirement applies in one circumstance only: when an FBI agent runs a query designed to retrieve a U.S. person’s communications or other Fourth Amendment-protected information. That is as it should be under the U.S. Constitution.
As we face the renewed debate over Section 702 – which must be reauthorized in the next few months – expect the parade of untruths to continue. As they do, PPSA will be here to call them out.