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[Joseph Tracy]

The opportunites for abuse in these programs is enormous. You can easily target international labor rights communication to open the door for spying domestically on labor advocates. The same goes for human rights, animal rights, environmentalists. It simply opens the door for targeted spying on political dissidents or opponents . Since the FBI has a long history of this kind of abuse it is not just risky but highly likely to go wrong.

From Alex Emons in the Intercept
The programs rest on the notion that they are “targeting” foreigners, but they also collect massive amounts of data on Americans, including wholly domestic communications. Amazingly, the intelligence community has never disclosed how much. Numerous members of Congress have requested an estimate since 2011, but both the Obama and Trump administrations have refused to provide one.

The bill also consolidates the FBI’s legal authority to search those communications without a warrant. Under current rules, the NSA shares certain kinds of information it collects under Section 702 with the FBI, whose agents can then search it in the course of investigating crimes unrelated to national security. In a secret court hearing in 2015, a lawyer for the Justice Department compared the frequency of those searches to the use of Google.

On Thursday, the House failed to pass an amendment to the bill offered by Rep. Justin Amash, R.-Mich., which would have required federal law enforcement agents to get a warrant before searching NSA data for information on Americans. The amendment was defeated 183-233, with 125 Democrats voting for it and 55 Democrats against, including Minority Leader Nancy Pelosi, D-Calif..
co
As it is, the bill contains a cosmetic reform to the practice of “backdoor searches,” which requires the FBI to get a warrant whenever conducting searches related to an established criminal investigation. But it carves out massive exceptions, including for any investigation related to national security and whenever the FBI determines there is a “threat to life or serious bodily harm.” The issue is largely moot anyway because current rules allow the FBI to conduct queries even before opening an investigation.

“Our right to privacy does not begin when the Department of Justice has a fully formed criminal case against us,” said Rep. Jerrold Nadler, D-N.Y., the top Democrat on the House Judiciary Committee, who spoke on the floor in support of the amendment. “The Constitution guarantees far more than this — our right to privacy protects us when the government first makes its decision to search our private communications for information it might find useful.”
> On Jan 16, 2018, at 5:41 PM, Mark Kohut <mark.kohut at gmail.com> wrote:
> 
> I, too, wanted a different vote on this bill. I could say a lot more but I will say that the Dem congresspeople, like most constitutional lawyers 
> do not believe the bill IS unconstitutional. Lotsa relevant decisions --precedent as they say in law; that rule of law which is not raw power---
> 
> Below is a recent [Dec 2017] statement and explication of all the federal court decisions which lead most lawyers to the opinion above. . 
> 
> If there have not been the right challenges made to make the case, I know nothing more and, as we know, it will take more cases being argued and decided
> . 
> If more relevant cases are still to come before the courts, we will see. 
> 
> The phrase "ruling by raw power", which is one of those load-the-dice argumentative moves which condemns itself after whatever one thinks of the decisions and the nature of our courts and its decisions. (I too hate the rightward packing of many of our courts...and esp The Supremes for the cases that get that far. 
> 
> Section 702 is Constitutional and Well-Regulated
> 
> Unfortunately, advocacy groups and even key lawmakers in Congress continue to erroneously suggest that Section 702 is unconstitutional. In June 2017, for example, the House Freedom Caucus Board released a statement claiming that “surveillance activities under the FISA Amendments Act have violated Americans’ constitutionally protected rights.” In reality, however, every single federal court (including, notably, the Ninth Circuit Court of Appeals) sitting in review of Section 702 in connection with its use in national security prosecutions has found it statutorily authorized by Congress and constitutional as applied.
> 
> In November 2015, then-Chief Judge Thomas F. Hogan of the FISC approved reauthorization of the government’s Section 702 “certifications” and “procedures.” Hogan used his authority under 50 U.S.C. § 1803(i)(2), to appoint an amicus curiae to help the court decide the “novel or significant” legal issues involved in analyzing Section 702. The amicus curiae argued that the government’s targeting and minimization procedures under Section 702 as implemented by the FBI were unconstitutional. Notably, the amicus curiae did not in any way suggest that the FBI was required to obtain a warrant to obtain intercepts captured pursuant to Section 702. However, Hogan disagreed with the concerns about targeting and minimization procedures, finding the government’s procedures were consistent with the Fourth Amendment because they struck “a reasonable balance between the privacy interests of United States persons and persons in the United States, on the one hand, and the government’s national security interests, on the other.” Later that month, in United States v. Muhotorov, Judge John L. Kane of the United States District Court for the District of Colorado relied on similar reasoning to reject a constitutional challenge to Section 702. Like Hogan, Kane focused on the balancing of interests required under a Fourth Amendment reasonableness analysis. After careful consideration of that balance, Kane concluded that Section 702 “passes the Fourth Amendment test.” In March 2016, Judge John Gleeson of the United States District Court for the Eastern District of New York considered a constitutional challenge to Section 702 in United States v. Hasbajrami. Gleeson thoroughly analyzed Section 702, and like Hogan, ultimately applied a balancing test to conclude that the government’s program was “reasonable under the Fourth Amendment.” And most recently, in December 2016, the United States Court of Appeals for the Ninth Circuit in United States v. Mohamuddenied a constitutional challenge to the program. Writing for the court, Judge John B. Owens followed suit with the aforementioned judges and applied a balancing test to conclude that the program was “reasonable” as applied.
> 
> To the extent that anyone might suggest that the law on incidental interception is “unsettled” (which it is not) it is also worth considering, as Judge Gleeson did in United States v. Hasbajrami, the Supreme Court’s ruling in this area. In United States v. Kahn, the Supreme Court found that the incidental interception of an individual’s conversations on her home telephone was not a violation of the Fourth Amendment, because her criminal activities were not foreseen when a Title III wiretap order was issued. Other courts to address the incidental interception issue in other contexts have found similarly and no meaningful distinction between the constitutionality of incidental interception under the Section 702 program and incidental interception through other lawful surveillance has been identified. For example, in United States v. Figueroa, the Second Circuit found that Title III allowed for the interception of conversations of “others as yet unknown,” (i.e., unknown third parties) and that allowance “d[id] not render a statute [] unconstitutional on its face as authorizing a general warrant.” In United States v. Butenko, the Third Circuit upheld the constitutionality of warrantless surveillance for foreign intelligence purposes even though “conversations ... of American citizens [might] be overheard.” Similarly, in United States v. Bin Laden, the Southern District of New York found that “incidental interception of a person's conversations during an otherwise lawful surveillance is not violative of the Fourth Amendment.”
> 
> In addition to judicial review, Section 702 procedures are subject to extensive oversight within the executive branch, including routine reviews by the Department of Justice and the Office of the Director of National Intelligence, not to mention broader review by the internal legal counsel at the government’s key national security agencies, including the FBI, the CIA, and the NSA’s general counsel offices. To the extent that the FBI seeks to use Section 702 information in a national security prosecution, a second review of the legality of the interception occurs within the Department of Justice and by lawyers in the United States intelligence community (IC). Congressional committees also receive regular reporting on the program. And while it is true that these extensive review processes have revealed incidents of non-compliance with the statute, issues have arisen in an extremely small number of cases. According to the independently commissioned PCLOB, the rate of compliance issues for Section 702 searches has been “substantially below one percent” since the program’s initiation. Most importantly, to date, there has been absolutely no indication that the government has ever attempted to circumvent or violate the safeguarding procedures required by Section 702. 
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