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January 21, 2018

Tell Congress: Don’t Give Trump Unconstitutional Spying Powers


Our communities are no strangers to intrusive and harmful surveillance by the government. But if Trump and the FBI get their way, they will have unprecedented power to use advanced surveillance tools to harm our movements and communities.

Tell Congress: Don’t let Trump spy on us!

Right now, Trump is pushing Congress to pass the USA Liberty Act, a bill that will extend legal loopholes in a surveillance authority called Section 702, which give Trump the power to spy on Americans without a warrant and secretly share that information with the FBI.

This surveillance serves not only to keep tabs on activists but also to deter them from pushing forward. Surveillance is a tool of fear. It is a tactic to reinforce White supremacy. Again and again, we’ve seen these agencies target activists of color for simply demanding an end to police violence.1 And with the recently leaked memo showing the FBI’s efforts to classify those who protest police violence as “Black Identity Extremists,” we can bet that the FBI will abuse this authority to silence Black voices.2

Under the FBI’s “Black Identity Extremist” classification, the FBI intentionally conflates Black political activists and organizers with dangerous domestic terrorist organizations that pose actual threats to law enforcement. By creating this made-up classification, the FBI will be able to more easily carry out warrantless surveillance and harassment of Black activists in a manner similar to the FBI’s Civil Rights era COINTELPRO. When combined with an unchecked Section 702, these programs will provide Trump and the FBI vastly expanded abilities to treat peaceful protests, vigils, and community organizing as national security threats.

Will you help us stop this from happening?

Tell Congress: Don’t let Trump spy on us!

Right now, the loopholes in Section 702 give Trump the power to spy on Americans without a warrant and then secretly share that information with the FBI. Without congressional action, Section 702 will expire at the end of the year. But Trump is demanding a reauthorization of its spying powers through the USA Liberty Act, but a growing bipartisan block of Congress is fighting for needed reforms to significantly rein in and limit this far-reaching surveillance power.

That’s why we’re calling on Congress to fundamentally fix the USA Liberty Act. It needs strong reforms to rein in Trump, the NSA, and FBI before anyone should support it.

Here’s why the USA Liberty Act needs to be fundamentally fixed. It currently:

  • Doesn’t stop backdoor searches, which is when the government searches through electronic communications such as emails and texts for information without a warrant. In its current form, the USA Liberty Act would make it much easier for the FBI to get unconstitutional access to people’s communications.
  • Fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target.
  • Doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

Our communities know all too well the devastating ways state surveillance programs like this are used to harm and divide us. With an FBI that shows it is adamant about criminalizing Black protest and communities, we cannot afford for them to have access to secretive surveillance tools like Section 702. We must do whatever we can to push Congress to fundamentally fix Section 702 and keep broad and intrusive surveillance tools out of the hands of Trump and the FBI.

Tell your members of Congress: Don’t let Trump spy on us. If we can’t protect our privacy, then Section 702 needs to be shut down.

Until justice is real,

— Brandi, Rashad, Arisha, Johnny, Evan, Jade, Chad, Corina, and the rest of the Color Of Change team.

References:

1. “EXCLUSIVE: FEDS REGULARLY MONITORED BLACK LIVES MATTER SINCE FERGUSON,” The Intercept, 24 July 2015. https://act.colorofchange.org/go/5222?t=9&akid=8121%2E1603708%2Es7qwGM

2. “The FBI’s New U.S. Terrorist Threat: ‘Black Identity Extremists’,” Foreign Policy, 06 October 2018http://act.colorofchange.org/go/9831?t=11&akid=8121%2E1603708%2Es7qwGM

Section 702 Lets Spy Agencies Snoop on Americans – Without a Warrant.

In an end run around the Constitution, spy agencies have warped Section 702 of the FISA Amendments Act into a way to unconstitutionally snoop on Americans.

The law was intended to allow intelligence agencies to monitor communications of foreign individuals outside the United States. But spy agencies like the NSA have claimed this authority allows them to scan through and collect the emails and phone calls of innocent Americans. Then, the government routinely does “backdoor searches” of this information, where they may look up information about U.S. persons, even for reasons completely unrelated to intelligence gathering.

It’s the same law the NSA claims justified the scandalous programs uncovered by Edward Snowden, like the PRISM program, which forces tech companies to turn over data on their servers, and Upstream collection, which automatically searches all internet traffic that crosses tapped lines connecting the U.S. with the rest of the world.

Flying in the face of the Fourth Amendment, the government searches this information specifically for Americans at least tens of thousands of times a year without a warrant, without evidence of a crime, and without independent oversight.

The So-Called “USA Liberty Act” Would Not Stop Trump From Spying on People in the U.S.

The so-called “USA Liberty Act” (H.R. 3989), which was recently introduced in the House, must be significantly improved or give way to a strong surveillance reform. Here’s why:

 

    • It doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on U.S. soil – all without a warrant. Instead, the bill okays accessing and sharing this information for foreign intelligence purposes, a loophole big enough to drive a truck through.

 

    • It fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target. Collections should be limited to communications that are “to” or “from” a target.

 

    • It doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

 

    • It doesn’t stop Section 702 information from being used in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.

 

    • It gives the NSA too many free passes. The bill adds some transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports to Congress, and only a small amount of information would trickle out to the public. And there’s no independent oversight into how President Trump and Attorney General Sessions interpret the law.

 

Spying Powers Are Already Being Abused. Under Trump Things Could Get Far Worse.

Even before a would-be authoritarian like Trump took power, the spying powers on the books have been abused consistently. The government has shown a persistent inability to follow rules that are supposed to protect Americans, as chronicled in a 2017 report by Demand Progress.

Judges on the FISA Court have called the violations “a very serious Fourth Amendment issue” and complained of “an institutional ‘lack of candor’” from the spy agencies.

Surveillance powers have been turned against activists and people of color in the past, from the FBI’s intimidation campaign against Martin Luther King, Jr. to recent infiltration of Muslim student associations on college campuses. With Trump’s clear authoritarian impulses and tendency to target vulnerable populations, Congress extending these spying powers to Trump would be catastrophic.

The USA RIGHTS Act Would Put the Right Limits on Spying Powers

The USA RIGHTS Act (S. 1997 / H.R. 4124) from Senators Rand Paul and Ron Wyden has important reforms to rein in Section 702 spying powers. It protects the privacy of Americans’ phone calls and emails and is markedly better than all other current legislative proposals.

The USA RIGHTS Act creates a search warrant requirement that closes the backdoor search loophole, permanently ends “about” collection, requires the government to tell defendants when it uses surveillance information against them in court, and much more. The Senate should pass the bill without delay.

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