Will FISA write the epitaph of the Fourth Amendment?


Although Section 702 of the Foreign Intelligence Surveillance Act (FISA) was just reauthorized for six years, I joined a broad coalition of Republicans and Democrats who share Constitutional concerns about the current program and the re-authorization bill. While each member opposed may have individual differences about the ideal solution, we coalesced around one alternative, the USA Rights Amendment sponsored by Justin Amash, which would have restored the warrant requirement for searches related to American citizens. Unfortunately, our efforts failed 183 to 233. Despite substantial bipartisan support for the USA Rights Amendment, House leadership refused to consider other amendments, excluding all five of the amendments I offered. Each was more stringent than the reauthorization bill that passed, but less stringent than the USA Rights Amendment that failed.

Make no mistake, the overall program serves a vital national security objective. I understand the essential role intelligence gathering plays in defending the U.S. from foreign threats, but there needs to be strong safeguards in place to protect citizens’ privacy rights. Our point was not to end the program, but rather to ensure that in the effort to conduct foreign intelligence surveillance that we continue to respect the Constitutional rights of all Americans. The Constitution of the United States does not apply to non-citizens, but citizenship matters and Americans are supposed to be protected by the Constitution of the United States.

In 1978, Congress passed FISA to establish procedures that protect the privacy rights of U.S. persons when they are being monitored for the purpose of collecting foreign intelligence. Under these procedures, law enforcement officials must get a court order from the Foreign Intelligence Surveillance Court (FISC) to search an American’s communications, and they must comply with certain procedures that protect the anonymity of U.S. persons.

Following 9/11, the federal government wanted to gather intelligence on terrorist networks by searching through and capturing enormous amounts of electronic communications such as emails, text messages, phone calls, and more. Section 702 of the FISA Amendments Act created procedures for targeting non-citizens located outside of the United States. In order to collect the information, these FISA amendments created a different set of laws that gave law enforcement officers permission to collect data on Americans without having to go through the warrant system. This means that family members innocently conversing by email about a news story could have their data collected, stored, searched, and used against them – all without a warrant.

Government agencies like the NSA, CIA, and FBI can search through this data using search terms relating to American citizens. The FBI can use FISA derived evidence to start criminal investigations and use as evidence in court, even if the crime is unrelated to national security. Backdoor searches have allowed law enforcement officers to circumvent privacy protection guarantees to American citizens by the Fourth Amendment.

Rather than hand another blank check for the FISA program, Congress should have at least implemented reporting requirements to make sure agencies are following and enforcing statutory requirements and administrative guidelines set by the Foreign Intelligence Surveillance Court (FISC).

Moments before the vote reauthorizing Section 702, President Trump shared his concerns over twitter about the Steele dossier placing responsibility on FISA. The NSA has a history of gathering huge amounts of private communications, including from citizens like Ohioans Dennis Kucinich (D-OH) and Jim Traficant (D-OH). Moreover, according to Department of Justice’s own FISA reports, obtaining a warrant has an almost nonexistent denial rate. Of the nearly forty thousand warrants issued only 51 have been denied – a .12 percent denial rate. Now, it seems possible that FISA’s warrant process was abused to target another political figure, then candidate and President-elect, now President Donald Trump.

Americans should be concerned that the federal government has the ability to abuse its capacity to gather foreign intelligence by needlessly spying on its own citizens. Unless we the people support and defend our Constitution, what’s next? Without serious reforms to FISA, the Fourth Amendment will exist as nothing more than a very distant memory. As Ronald Reagan said, “Freedom is never more than one generation away from extinction.” In light of all that has transpired since the reauthorization of FISA, I feel that Congress has a duty to revisit this issue to both sustain an essential intelligence program and to guarantee Constitutional protections for every American.


Congressman Warren Davidson (R-OH) was first elected to the U.S. House of Representatives in a June 2016 special election. A graduate of the U.S. Military Academy, he had the honor of serving in the 75th Ranger Regiment, The Old Guard, and the 101st Airborne Division. Viewpoints expressed in the article are the work of the author. The Daily Advocate does not endorse these viewpoints or the independent activities of the author.

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