House Moves to Close Warrantless “Backdoor Searches” Under FISA

On June 19, the House approved bipartisan legislation to limit intelligence agencies’ ability to search records of U.S. persons in their possession.  By a 293-123 vote, the House adopted an amendment to the Department of Defense funding bill that would close the warrantless “backdoor search” loophole in the FISA Amendments Act by requiring the National Security Agency to obtain permission from a court before examining communications of U.S. persons obtained under the law.

The FISA Amendments Act authorizes foreign surveillance of online and telephone communications.  It explicitly prohibits the NSA from intentionally targeting U.S. residents.  Ordinarily, the Fourth Amendment requires an individualized warrant before the government can engage in surveillance on American soil.  However, the current law does not prohibit the agency from querying databases for U.S. communications inadvertently gathered under a foreign surveillance program, and government officials have acknowledged in recent months that they do, in fact, conduct warrantless searches of U.S. records of such incidental collections.

The amendment by Reps. James Sensenbrenner (R-Wisc.), Thomas Massie (R-Ky.), Zoe Lofgren (D-Calif.), and others would block the NSA from using any of its funding from the FY2015 defense appropriation to conduct such warrantless searches.  A version of the proposal had been part of the original USA Freedom Act (H.R. 3361), but it was stripped out in negotiations among congressional leaders before that bill was passed by the House last month.  Privacy and civil liberties advocates are suggesting that the strong bipartisan support in the House for closing the “backdoor search” loophole should strengthen the hand of surveillance reformers in the Senate as it takes up the House-passed bill.

TCP’s Liberty and Security Committee argued in its 2012 Report on the FISA Amendments Act of 2008 that national security programs must cease to operate outside of the Fourth Amendment’s safeguards against unreasonable searches.

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