WASHINGTON -- Bush-era warrantless surveillance procedures continued by President Barack Obama remain so secret that neither the public nor members of Congress know how many Americans' emails and phone calls are routinely dumped into a government database.
But the likelihood that the government is violating Americans' Fourth Amendment rights is sufficiently great that Congress should demand more information and change a 2008 surveillance law before renewing it, a constitutional watchdog group urges in a new report.
The report from the Constitution Project's blue-ribbon panel of bipartisan experts notes that some checks on the government's ability to infringe on basic privacy rights no longer exist. "Electronic surveillance has no practical limitations – certainly none that protect privacy," the authors write. "Thorough judicial oversight should be required to compensate for the elimination of practical barriers to surveillance."
But there is almost no mandated oversight in the FISA Amendments Act (FAA) of 2008, which gave then-president George W. Bush (and now Obama) legal cover for the warrantless surveillance program that had been going on for several years prior. The FAA dismantled many reforms put in place by the Foreign Intelligence Surveillance Act (FISA) of 1978, which was passed to end covert spying on Americans by the government and to make sure targets were legitimate.
The 2008 law expires at the end of 2012. Congress is expected to take up the law before it expires to either update it or renew it as is.
"After almost four years of the expanded, programmatic surveillance the FAA allows, almost nothing is publicly known about how the Act has been implemented or about the scope of the surveillance that is being conducted under the Act," the report states. "What is known, however, raises serious questions about the Act’s impact on privacy rights."
A July attempt by 13 senators to get a "rough estimate" of the number of Americans who have had phone calls and emails collected under the law was rebuffed as beyond the capacity of the National Security Agency.
"If even an estimate is impracticable, then Americans can rightfully be concerned about the scope of this electronic surveillance," the report says. The Washington Post reported in 2010 that the NSA intercepts 1.7 billion emails, phone calls and other types of communications every day.
The Fourth Amendment protects Americans from warrantless and unreasonable searches. Although the 2008 law lifted the warrant requirement solely for international communications of foreigners, the net effect was that some Americans' communications were "incidentally" captured and stored in a searchable database, the report states. The database allows officials to find information on specific Americans, it says, regardless of suspicion that they have committed a crime.
The report's authors urge Congress to demand information about how the government has used its authority under the law, including the average number of communications per person intercepted. They conclude that, "constitutional threats posed by the FAA require a thorough review by Congress now" along with a restoration of "adequate safeguards for privacy rights."
The Constitution Project is made up of constitutional purists from the left and right. It is considered one of the few truly bipartisan groups in Washington, which also increasingly puts it out of step with the leadership of both parties.