WASHINGTON (AP) — As the Senate nears renewal of a key U.S. spy program, law enforcement veterans and privacy advocates say the bill’s demand for a warrant in some cases when the FBI digs into Americans’ emails and other communications will amount to little more than a nuisance.
The bill’s proponents say the new provision will further safeguard Americans’ communications. But opponents say the warrant requirement would rarely kick in and investigators could find ways to avoid it. The main thrust of the intelligence program, which provides insights into the thinking and actions of U.S. adversaries, is unaffected.
The legislation, approved by the House and now before the Senate, allows the FBI to continue scanning a database of intelligence collected on foreign targets, using search terms, for information on Americans. But it would require investigators to get probable cause warrants to view the actual content in cases unrelated to national security. Exceptions would apply, such as for murder and kidnapping cases. It also would require a warrant only in criminal investigations that are in their final stages.
This isn’t “real reform,” says Elizabeth Goitein with the Brennan Center for Justice. She said that in 2014, the government’s civil liberties watchdog office reported that the FBI routinely conducts these searchers at the very earliest stages of its investigations. The warrant requirement is designed “to have no effect whatsoever,” she said.
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The intelligence program expires Friday. The House reauthorized it last week and the Senate is poised to follow suit in the next day or two. President Donald Trump has vowed to sign into law, which reauthorizes the program six more years.
While the program focuses on foreign targets, Americans’ emails, phone calls and other communications get vacuumed up in the process. Privacy advocates and lawmakers from both parties have argued for years that government agencies should need warrants to look at Americans’ communications in the database.
Republican Sen. Mike Lee said not requiring a warrant to access the information leaves open a “backdoor to government spying on American citizens.” While Lee doesn’t suspect the information is being used improperly, he said bureaucrats could use it to “snoop on anyone the government doesn’t like.”
Advocates don’t see that these problems have been fixed.
Paul J. Hetznecker, a civil rights lawyer who filed a lawsuit to make intelligence agencies turn over any evidence that they spied on demonstrators in Philadelphia protesting income inequality, said the modified rule “does not curtail the reach of these agencies to spy on U.S. citizens.”
“The intelligence agencies can easily circumvent this requirement by broadly asserting that there is a remote and/or tangential connection to a national security ‘interest’ and therefore no warrant is required,” he said.
The FBI declined to comment on the legislation. While former FBI agents acknowledged the new regime might mean occasional delays, it won’t hugely inconvenience investigators.
The privacy concerns are “overblown,” said Frank Montoya Jr., a former FBI special agent with a background in counterintelligence investigations, who argued the FBI and Justice Department already have sufficient oversight. “It’s not like we’re casting out these wide nets … and just randomly listening to people or randomly reading emails,” he said. “We don’t have the resources to just cast wide nets.”
Montoya said the communications database is “all about focused investigations on specific individuals” and that investigators conduct “rigorous self-policing.” The FBI should be able to access information in its possession “without jumping through more hoops than necessary,” he said, fearing the additional warrant requirement would slow down investigations.
Former FBI counterterrorism official David Gomez said warrant requirements can be tedious, but the bureau’s agents are generally accustomed to them.
“It’s not such a burden that it’s going to slow things down,” Gomez said. “Is it going to slow things down a little bit? Yeah, but it’s what you do.”
Intelligence and law enforcement bodies lobbied hard for the program to be reauthorized with as few changes as possible. Several senators of both parties pushed for stricter rules governing FBI access to information on Americans in the foreign intelligence database, losing a battle in a close vote Tuesday that would have given them the chance to amend the bill with tougher rules.
Robert S. Litt, the national intelligence director’s lead lawyer from 2009 to 2017, said government agencies can live with the outcome.
“There were some changes on the margin, but they are changes that are not going to significantly impede lawful intelligence activity,” Litt said.