Saturday, June 22, 2013

How FISA law became unconstitutional

One terrorist act and one amendment at a time, that's how.  Argues law professor Laura Donahue:

To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.

The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records. Following the 1995 Oklahoma City bombing, Congress allowed applications for obtaining records from certain kinds of businesses. In 2001, lawmakers further expanded FISA to give the government access to any business or personal records. Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.

This means that FISA can now be used to gather records concerning individuals who are neither the target of any investigation nor an agent of a foreign power. Entire databases — such as telephony metadata — can be obtained, as long as an authorized investigation exists.

President Obama is taking a lot of heat right now for the NSA's spying on us and rightly so.  But let's not let Congress off the hook.  They passed these laws.  They could pass a law to outlaw PRISM tomorrow, if they wanted to.  

By Laura K. Donohue
June 21, 2013 | Washington Post

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