When our Founding Fathers established this American Republic, a wise group insisted that our Constitution include the Bill of Rights to ensure that the federal government they created could not infringe on the natural rights of Americans. The First and Second Amendments protect speech and the right to bear arms, respectively. After these essential freedoms, however, comes an amendment that most consider obsolete: the Third, which prohibits the federal government from quartering soldiers in Americans’ homes during peacetime.
On its face, Americans shouldn’t have to worry about the Third Amendment. The Founding Fathers’ ban on quartering addresses a problem we no longer encounter. But, considered in tandem with the Fourth Amendment— the right to keep private property and documents secure against illegal searches — a different picture emerges.
Taken together, the Third and Fourth Amendments dovetail to form a right to privacy as it applies to the home, your property, and your person. The government cannot take up residence in your home, and it cannot look through your private effects without a warrant.
Yet that’s exactly what the government has done. Technology developed for national security purposes has worked its way into phones, computers, and tablets, compromising not only the American right to privacy but also the sanctity of our homes.
In less than a month, Congress can make our Founding Fathers proud and reverse this invasive legal trend. Section 215 of the Foreign Intelligence Surveillance Act (FISA) is set to expire on March 15. FISA was originally created in 1978 and massively expanded after 9/11 under the USA Patriot Act. The emphasis is on “foreign” — there are supposed to be safeguards to protect American citizens from being targeted with these statutes. However, the U.S. government secretly has secretly taken up residence in Americans’ smartphones and laptops.
The scope of abuse from this troublesome law gained notoriety in 2013 when whistleblower Edward Snowden went public about the National Security Agency’s warrantless warehousing of millions of Americans’ phone records and geolocation data. Congress attempted to “fix” the obvious legal problems by passing the USA Freedom Act in 2015, but we know the story of abuse doesn’t end there.
In 2016, the FBI spied on a member of President Trump’s campaign staff, abusing the lax standards and selective enforcement mechanisms of FISA, using stories of “Russian meddling” in the general election to prop up Clinton-sourced opposition research linked to Russia.
Separately, an October 2018 Foreign Intelligence Surveillance Court (FISC) found more widescale abuse. The FISC opinion was declassified on Oct. 8, 2019. Among other findings, it shows that the FBI made 3.1-million warrantless searches of Americans’ data in 2017 alone. Some 57,000 individuals were subject to illegal searches by the FBI in April 2018. The year before, the FBI searched over 70,000 email addresses and phone numbers. At no point did a court issue a warrant and these individuals were never notified that they were subject to such a search.
Worse, no one batted an eye after the FISA court made these abuses public — despite the fact that such abuses strike at the very heart of our civil liberties and the spirit of our constitutional republic.
Fortunately, an unlikely group of legislators from both chambers in Congress has banded together to introduce legislation that will finally protect the 3rd and 4th Amendments and overhaul FISA.
In the House, I joined my colleagues Reps. Zoe Lofgren, D-Calif., Pramila Jayapal D-Wash., Matt Gaetz, R-Fla., Earl Blumenauer, D-Ore. and Ted Yoho, R-Fla., to work with Sens. Ron Wyden, D-Ore., and Steve Daines, R-Mont., to introduce the Safeguarding Americans’ Private Records Act (SAPRA).
This bipartisan legislation ends the National Security Agency’s mass phone record program and prohibits warrantless searches of GPS, web browsing, and search engine history. It also makes the FISA court more accountable by requiring the court to notify American citizens if they’ve been investigated under FISA and forcing the court to disclose all opinions within six months of issuance.
SAPRA also creates public reporting requirements about the extent to which intelligence agencies illegally used FISA to surveil Americans or target activity protected under the First Amendment.
My fellow cosponsors and I can only hope that as the evidence has piled on that more of our colleagues will support our bipartisan legislation. With the March 15 deadline approaching, we are in a unique position to correct this prior constitutional malpractice and systemic abuse.
For too long, Congress has allowed an overzealous intelligence community to operate with limited oversight in the name of national security. America can (and must) sustain the world’s preeminent intelligence capabilities without infringing on the rights of American citizens. SAPRA will help bring this era of congressional negligence to an end and usher in a newfound appreciation for the power and purpose of those oft-forgotten Third and Fourth Amendments.