Imagine coming home from a long day at work, turning on your Playstation 4 and starting a game of ”Tom Clancy’s Ghost Recon.” As you hide out on a virtual mountain, you locate a group of enemies
and send a message to another player in Canada: “Found a group of terrorists. Jump on and let’s get some bad guys.”
In response, the government pores over every email you’ve ever sent, every text you’ve ever received and anything you’ve ever written electronically. It sounds like Orwellian science fiction, but it’s not: It’s the FISA Section 702 bill, which was just passed by the House and Senate and became law, with support from lawmakers of both parties.
FISA stands for Foreign Intelligence Surveillance Act, first passed in 1978 under President Jimmy Carter. It came into infamy in the post-9/11 George W. Bush era, where expansions of the law allowed warrantless wiretapping of Americans and mass collection of data from American internet services. The practice of combing through your texts and emails is known as “About Collection.” The new law allows the government to mass-collect all the data it can on a target, then perform a keyword search, and the scope of that collection can include Americans.
In this hypothetical case, you used the word “terrorist,” which triggered the government’s search, but you could also be spied on without any actions on your part. If a FISA target were to email you a threat, you would be entered into the National Security Agency About Collection database, and the government could spy on anything you’d ever written online.
FISA was set to expire this year, and instead of being renewed, it was expanded. The American Civil Liberties Union summed up the expansion bill best, saying, “The House just passed a bill to give the Trump administration greater authority to spy on Americans, immigrants, journalists, dissidents, and everyone else.”
I wish I could say Democrats fought this every step of the way, but we didn’t. Sixty-five House Democrats and 21 Senate Democrats voted for final passage of the bill, agreeing to give the Trump administration expanded warrantless spying powers. Democrats supporting the measure included Minority Leader Nancy Pelosi (Calif.) in the House and Claire McCaskill (Mo.) in the Senate. In the age of hyperpartisanship, it seems the only thing Republicans and Democrats can agree on is handing the Trump administration more of one of the most invasive and historically abused presidential powers.
The FISA bill makes everything Edward Snowden tried to warn us about legal.
In 2013, Snowden leaked information about the abuses of FISA, including the now-notorious PRISM program. PRISM started as an NSA program to collect data from Google, Apple, Yahoo, Facebook and YouTube. Under the aegis of the Data Intercept Technology Unit of the FBI, collectors were sent to American internet service providers to mass-collect information including emails, searches and chat logs. These businesses are legally obligated to turn over all data with almost no oversight or limits. That data is then handed to the NSA, which can search the massive database with keywords. Metadata is also included, meaning they can learn who you call, and where you go. No matter your political orientation, because of the lack of judicial oversight, PRISM should terrify you.
Because he blew the whistle on PRISM, Snowden was forced to leave his family, his country and his career behind. He put the power in our hands, trusting that we would pressure our representatives to end the program’s Fourth Amendment abuses. But we didn’t. We went back to sleep, and now the Trump administration has the power to spy on practically any American it chooses.
So, how do we re-establish our civil liberties?
The first step is realizing no political party is coming to save us. While it’s true much of the support for warrantless wiretapping has come for Republicans, far too many Democrats have been on the wrong side of this fight. Snowden hoped that these practices would end in the Obama era, but they were simply scaled back. And now, Pelosi and McCaskill have given Trump the greenlight to spy as he pleases, with only cursory oversight.
Democrats who value civil liberties need to run for office and replace those that don’t. And we need to be willing to work across the aisle with those Republicans who are worried about government overreach. When it comes to warrantless surveillance, Sen. Rand Paul (R-Ky.) represents privacy concerns far better than the average Democrat. We need to build coalitions with representatives ― of any and all parties ― who put our constitutional rights first.
Second, we need to codify the right to encryption. Your only defense against being spied on are technologies like end-to-end encryption, such as iMessage and FaceTime ― Apple alternatives that are painstakingly built with privacy in mind. Unfortunately, the FBI is doing everything in its power to fight your right to encryption. In the aftermath of the San Bernardino shooting in California, the FBI sought to force Apple to give the government a secret backdoor into the iPhone. That effort failed, but new legal assaults continue. The only way to permanently stop this is an omnibus privacy bill that guarantees your right to keep what you say electronically private.
Third, we must get our national security priorities straight. Right now, the biggest threats to our country are cyberattacks on our electronic infrastructure. This ranges from the social hacking of the 2016 election by Russian bots to the 2016 Dyn cyberattack, when a single angry gamer attacked a network service provider, disrupting service to more than 1,200 websites.
Just this week, The Verge outlined just how vulnerable our nuclear infrastructure is to cyberattacks. These attacks happen every day, and they have the capacity to paralyze our financial, information and social infrastructure. These are critical components of full-spectrum dominance, warfare that is waged by hijacking communication, financial and economic infrastructure. Our continued inaction is absolutely inexcusable. We need to be hardening our defenses with a national initiative for encryption, not criminalizing companies who provide it.
A common argument for allowing the government broad powers to spy without oversight is that only those with something to hide will be targeted. Snowden summed up the problem with this logic best.
“[The] common argument is ‘if you have nothing to hide, you have nothing to fear,’” Snowden said. “The origins of that are literally Nazi propaganda. When we hear modern politicians repeating that reflexively without confronting its origins, without confronting what it really says, that’s harmful.”
Proponents of warrantless wiretapping claim that threats of terrorism constitute extraordinary circumstances. To them, I would say the Constitution was born out of extraordinary circumstances. The Fourth Amendment is not an inconvenience to be circumvented ― it is a cornerstone of due process. If the Trump era is not the time to protect our civil liberties, when is?
Brianna Wu is a software engineer and a candidate for U.S. Congress in Massachusetts’ 8th District.