EDITORIAL: Anti-terror law shouldn’t erode our constitutional protections

In the wake of the 9/11 terror attacks, Congress approved a controversial surveillance program that allows the government to gather the electronic data of Americans without a warrant. While the law is expected to be renewed when it expires at the end of the year, this practice has major constitutional ramifications and cries out for major reform.

Congress approved Section 702 of the Foreign Intelligence Surveillance Act in 2008 in order to bolster the government’s ability to monitor and stop foreign terrorists who might be plotting attacks. The law was intended to keep tabs on foreign citizens living outside the United States and bans going after Americans or foreigners living here.

In practice, however, the law allows government agents to collect electronic data — emails, phone calls, text messages and other electronic communication — of innocent Americans who might communicate with people abroad.

USA Today notes that “the government calls this ‘incidental surveillance’ and intelligence officials have so far refused to tell Congress how many unknowing Americans have had their personal data collected.”

That’s bad enough. But once the data is in the hands of spy agencies, the FBI and other law enforcement outfits have sought to access it to build criminal cases against Americans that have nothing to do with national security. Fourth Amendment, anyone?

“We do know that the FBI routinely searched through this data for information to use on Americans on ordinary (non-terrorism) crimes,” one privacy advocate told USA Today. “What we don’t know is how often information that is obtained or derived from Section 702 surveillance is used against Americans.”

Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, told USA Today that the law is being used “as an end-run around the Constitution.” He says he will put a hold on any bill that allows warrantless spying.

Intelligence officials counter that the program has helped to thwart terrorist plots. Great. But if expediency trumps the constitutional protections afforded all Americans, we’re on a fast track to tyranny.

The political reality is that Congress will renew some version of the law. But as that process moves forward and the constitutional ramifications are debated, lawmakers should pursue a measure that recognizes the importance of securing the civil liberties of American citizens. That should include beefing up warrant requirements for government searches of individual data.

Technological advances in the years since the law was initially approved have led to an explosion in personal information available for collection. For that reason alone, Congress should ensure that any new legislation avoids eroding our constitutional protections.