The US Senate has voted to approve the FAA Sunsets Extension Act of 2012, which will authorize warrantless surveillance of Americans for counter-terrorism purposes for another five years. The bill extends the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which granted retroactive immunity for wiretaps and email monitoring under the Bush Administration and created a framework for future warrant-free surveillance as long as one party is located outside the US and terrorism is suspected.
Whistleblowers like former NSA codebreaker William Binney have long since revealed that surveillance programs catch hundreds of thousands of American citizens in their dragnet. But attempts to criticize the law have been blocked by the fact that no one — including the Senate's intelligence committee — is allowed to know much of anything about how it actually works. That means this vote represented the last chance for Congress to enact meaningful review of surveillance activities for the next five years.
The final Senatorial vote was 73 in favor and 23 against. The bill already passed the House of Representatives in September, with 301 voting for and 118 against. Now, it will proceed to the desk of President Obama, who said earlier this year that his administration "strongly" supported the House bill and its ability to "ensure the continued availability of this critical intelligence capability." That means it's on track to be extended just before the original law expires on December 31st.
Amendments to require more disclosure or shorten the duration were shot down
Before the vote, the Electronic Frontier Foundation supported a series of four amendments that would grant additional protections to citizens or make a certain level of transparency mandatory. Those included Senator Ron Wyden's (D-Ore.) attempt to make the NSA estimate how many Americans it was watching, an amendment from Senator Jeff Merkley (D-Ore.) to release court opinions on the Act, Rand Paul's (R-Ken.) proposal to spell out Fourth Amendment protections as applying to electronic communications, and the Leahy Sunset Amendment, which would have set the Act to expire in three years instead of five and require an independent review.
But all of these amendments were shot down on the Senate floor. Even Sen. Wyden's modest proposal asking intelligence agencies to reveal whether or not there has even been an estimate of how many Americans have had their communications intercepted was rejected in a 42-53 vote. During the proceedings, Wyden said that "without this information which is necessary to do our work, oversight is not robust, it's toothless."
The wrinkle in the FISA Amendments Act reauthorization is an ongoing lawsuit over whether warrantless wiretapping is constitutional. The EFF, ACLU, and other organizations are fighting to get the US Supreme Court to consider the issue — most recently, the Court heard oral arguments about whether or not a future case could be brought. The NSA, meanwhile, has argued against the suit and refused to release information about the scope of its program. For now, wiretapping provisions are well on track to be extended until 2017, with no challenges in the near future.
Josh Kopstein and TC Sottek contributed to this report.