[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[House]
[Pages H8277-H8278]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WE MUST NOT ABUSE THE FOURTH AMENDMENT
The SPEAKER pro tempore. The Chair recognizes the gentleman from
Texas (Mr. Poe) for 5 minutes.
Mr. POE of Texas. Mr. Speaker, governments, militaries, and
civilizations sometimes ignore history to justify their actions against
individuals.
A bit of history is important here. When the British controlled the
Colonies, they heavily taxed the Colonies. Citizens had to pay a tax on
goods they brought in to the Colonies. The Colonies had no say on the
imposition of those taxes. That is another issue.
The King issued writs of assistance. What that was was a piece of
paper allowing the British military to go into businesses and homes,
unreasonably, to search to see if the Colonies were paying the tax on
imported goods. For example, John Hancock was a merchant. They would
search his business to see if he had a tax stamp on the rum he brought
the Colonies.
The right of privacy and the right to say something about your taxes
were two reasons for the American Revolution that came about. The right
of privacy is a natural right, as Thomas Jefferson said, one of the
rights given to us by our Creator.
So, our ancestors wrote the Fourth Amendment, unique to the United
States, and here is what it says:
``The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation''--that means the officer has to swear
to it--``and particularly describing the place to be searched, and the
persons or things to be seized''--Fourth Amendment.
So what does that have to do with us today? I will explain.
Congress has passed the FISA legislation, the Foreign Intelligence
Surveillance Act, which allows government to go after terrorists and
people who are working as an agent of a foreign government and search
their information. They go to a secret court and get a secret warrant--
it is called a FISA warrant--from a FISA judge to allow that search of
all that information. Separate the bad guys from Americans who they may
be communicating with unrelated to terrorism. They may be cousins
talking about whatever. But government, our government, NSA, seizes
that information on Americans--emails, conversations, text messages--
seizes all that information and keeps it forever.
And here is what happens in the violation of Americans' right of
privacy: Government then can go back into that information, unrelated
to terrorism, to search to see if those people are paying their taxes.
Maybe somebody didn't pay their taxes on importation of Irish whiskey.
So the government, IRS, files a criminal case against that American
citizen.
[[Page H8278]]
Remember, all of that information was based upon no probable cause
warrant issued by a real judge.
We are getting ready to reauthorize, maybe, FISA, the Foreign
Intelligence Surveillance Act. Before we do that, we need to protect
Americans' right of privacy. It is in a section called 702. It really
gets down in the weeds. 702 has been abused by government to seize
American information and then keep it forever. Government then peruses
that, based upon their high-tech guys in the NSA, to see if crimes were
committed or not. They have no warrant, no probable cause, nobody sworn
to the warrant.
I used to be a judge. I signed lots of probable cause warrants. But
here it is just seized because government says: Well, we have got it
because we were looking for a terrorist and it is an incidental search,
and we want to keep it.
That is a violation of the Constitution. We should make sure
Americans' right of privacy is protected before we reauthorize FISA.
Mr. Speaker, I include in the Record this article, ``Secret Court
Rebukes NSA for 5-Year Illegal Surveillance of U.S. Citizens,'' to
illustrate.
Secret Court Rebukes NSA for 5-Year Illegal Surveillance of U.S.
Citizens
(By Tim Johnson)
Washington.--U.S. intelligence agencies conducted illegal
surveillance on American citizens over a five-year period, a
practice that earned them a sharp rebuke from a secret court
that called the matter a ``very serious'' constitutional
issue.
The criticism is in a lengthy secret ruling that lays bare
some of the frictions between the Foreign Intelligence
Surveillance Court and U.S. intelligence agencies obligated
to obtain the court's approval for surveillance activities.
The ruling, dated April 26 and bearing the label ``top
secret,'' was obtained and published Thursday by the news
site Circa.
It is rare that such rulings see the light of day, and the
lengthy unraveling of issues in the 99-page document opens a
window on how the secret federal court oversees surveillance
activities and seeks to curtail those that it deems overstep
legal authority.
The document, signed by Judge Rosemary M. Collyer, said the
court had learned in a notice filed Oct. 26, 2016, that
National Security Agency analysts had been conducting
prohibited queries of databases ``with much greater frequency
than had previously been disclosed to the court.''
It said a judge chastised the NSA's inspector general and
Office of Compliance for Operations for an ``institutional
`lack of candor' '' for failing to inform the court. It
described the matter as ``a very serious Fourth Amendment
issue.''
The Fourth Amendment protects people from unreasonable
searches and seizures by the government, and is a
constitutional bedrock protection against intrusion.
Parts of the ruling were redacted, including sections that
give an indication of the extent of the illegal surveillance,
which the NSA told the court in a Jan. 3 notice was partly
the fault of ``human error'' and ``system design issues''
rather than intentional illegal searches.
The NSA inspector general's office tallied up the number of
prohibited searches conducted in a three-month period in
2015, but the number of analysts who made the searches and
the number of queries were blacked out in the ruling.
The NSA gathers communications in ways known as
``upstream'' and ``downstream'' collection. Upstream
collection occurs when data are captured as they move through
massive data highways--the internet backbone--within the
United States. Downstream collection occurs as data move
outside the country along fiber optic cables and satellite
links.
Data captured from both upstream and downstream sources are
stored in massive databases, available to be searched when
analysts need to, often months or as much as two years after
the captures took place.
The prohibited searches the court mentioned involved NSA
queries into the upstream databanks, which constitute a
fraction of all the data NSA captures around the globe but
are more likely to contain the emails and phone calls of
people in the United States.
Federal law empowers the NSA and CIA to battle foreign
terrorist actions against the United States by collecting the
electronic communications of targets believed to be outside
the country. While communications of U.S. citizens or
residents may get hoovered up in such sweeps, they are
considered ``incidental'' and must be ``minimized''--removing
the identities of Americans--before broader distribution.
The court filing noted an NSA decision March 30 to narrow
collection of ``upstream'' data within the United States.
Under that decision, the NSA acknowledged that it had erred
in sweeping up the communications of U.S. citizens or
residents but said those errors ``were not willful.'' Even
so, the NSA said it would no longer collect certain kinds of
data known as ``about'' communications, in which a U.S.
citizen was merely mentioned.
The NSA announced that change publicly on April 28, two
days after the court ruling, saying the agency would limit
its sweeps to communications either directly to or from a
foreign intelligence target. That change would reduce ``the
likelihood that NSA will acquire communications of U.S.
persons or others who are not in direct contact with one of
the agency's foreign intelligence targets.''
The court document also criticized the FBI's distribution
of intelligence data, saying it had disclosed raw
surveillance data to sectors of its bureaucracy ``largely
staffed by private contractors.''
The ``contractors had access to raw FISA information that
went well beyond what was necessary to respond to the FBI's
requests,'' it said, adding that the bureau discontinued the
practice on April 18, 2016.
Mr. POE of Texas. Mr. Speaker, we must remember history. We must not
abuse the Fourth Amendment. It is Congress' responsibility to protect
the natural right of citizens' right of privacy. Get a warrant or don't
make the search.
And that is just the way it is.
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