By Sarah Nashat

Image by Hyku. Used under CC BY 3.0 license.

Recent reports indicate that the Foreign Intelligence Surveillance Act passed the Senate and has turned up in the House for debate and deliberation. This Act once protected American domestic privacy, but in 2007 was overhauled, significantly amended in 2008 and enacted for the subsequent 5 years. The Act now allows the NSA to survey American phone conversations, emails or other communications to international parties without first obtaining a warrant. With the timer set for the end of this year, FBI director Robert S. Muller III strongly encouraged fast renewal of the powers his agency enjoys under FISA.

Nat Hentoff, eminent authority on the First Amendment, peers into the troublesome balance of power, lack of information and improper application of the privileges FISA bestows on the government. Picking up on the lack of discussion between the presidential candidates Obama and Romney, Hentoff wonders who in the higher stratospheres of government even gives a hoot that a former FBI employee of 16 years has written reports indicating that the dragnet data-collection strategy employed under FISA clogs up databases and closes off communities targeted by the police. He is not the only well-known defender of the First Amendment to take issue with the Act’s far-reaching language and excessive data collection, beyond even what is allowed in the Act itself.

Back in 2008 when the Act was significantly expanded to allow warrantless domestic wiretaps and data searches, the ACLU filed suit to challenge the conflict between the vast expanse of information collected by the government and the lack of adequate representation by people whose rights are infringed by the excessive data collection. The ACLU points out that the Justice Department has developed a Kafka-esque requirement that plaintiffs whose privacy rights have been infringed on must bring suit against specific government workers, but may not have access to information clarifying who those people actually are. This obscure loophole effectively rips away legal redress, and therefore balance, from the populace.

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