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In 2008, Barack Obama, then a U.S. senator, realized that if an important surveillance law were to pass, Americans鈥� right to privacy in their international communications would be (in the later words of the Department of Justice) 鈥渟ignificantly diminished, if not completely eliminated.鈥�

That law was the FISA Amendments Act 鈥� often referred to as the FAA or Section 702 鈥� which was enacted that year and which gives the government nearly unfettered authority to monitor Americans鈥� international calls and emails. Today, the government鈥檚 independent Privacy and Civil Liberties Oversight Board issued a disappointingly weak on the warrantless wiretapping of Americans鈥� international communications under the FAA.

There are many problems with the report. Most importantly, it fails to address whether the supposed benefits of the government鈥檚 sweeping surveillance could be achieved with a requirement that the government get a warrant before accessing Americans鈥� calls and emails.

The government has defended its warrantless surveillance under the FAA by arguing that its surveillance targets only foreigners overseas. But, as the privacy board recognized, one of the government鈥檚 primary uses of the statute is to collect those foreign targets鈥� communications with Americans.

In other words, the government uses the FAA to spy on Americans鈥� international communications 鈥� without a warrant and without suspicion of wrongdoing.

It does not have to be this way.

In 2008, then-Senator Obama co-sponsored an amendment to the FAA that would have prohibited the NSA from acquiring or looking at communications to or from someone in the United States without specific court approval. Though not perfect, it would have erected a reasonable yet critical barrier between the communications of law-abiding Americans and the all-seeing technology of the NSA.

Senator Obama鈥檚 amendment would not have prevented the government from wiretapping Americans鈥� cross-border communications, but it would have required the government to get a warrant before acquiring or reading them. The amendment ultimately failed, but it reflects a commonsense limit on the NSA鈥檚 nearly unlimited monitoring of Americans鈥� international calls and emails.

You would expect the privacy board to consider whether the supposed benefits of the FAA would be thwarted by such a commonsense protection for privacy. But it didn鈥檛.

Instead, the privacy board trotted out the government鈥檚 success stories with the FAA. The short summary: When the government collects hundreds of millions of communications a year, some of those communications turn out to be useful. That鈥檚 not terribly surprising. The FBI could surely catch criminals if it had a free hand to break down every door in the country without a warrant.

The real question, though, is whether such limitless surveillance is necessary, and, in particular, whether demanding the procedural protections that the Fourth Amendment has historically required would prevent the government from doing its job. There is no reason to think that it would, and on that question both the privacy board and the government have been conspicuously silent.

Although the board鈥檚 report is disappointing, it is by no means the last word. Congress has already heard Americans鈥� outrage in the aftermath of the revelations of the last year and considered legislation that would rein in some of the NSA鈥檚 most abusive practices. Congress should keep the momentum going by prohibiting the NSA from collecting and searching our international calls and emails unless it has a specific order allowing it to do so.

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