An expiring surveillance program known as the “crown jewel” for American intelligence agencies creates the opportunity for civil liberties advocates and deep state-skeptical Republicans to push for reform.
Section 702 of the Foreign Intelligence Surveillance Act (FISA), a law that the federal government believes allows intelligence agencies to collect communications of targeted foreigners, will expire at the end of December unless Congress reauthorizes the program. Essentially, the National Security Agency (NSA) can order email services like Google’s Gmail to turn over copies of messages or network operators such as AT&T or Verizon to intercept and furnish copies of phone calls, texts, and internet communications to or from a foreign target. This may also lead to incidental bulk collection of American citizens’ information.
Civil libertarians have warned that the government interprets Section 702 as allowing for intelligence agencies to collect and search Americans’ private communications without a court order. The government stores the raw bulk collection of data it collects under Section 702 into a database that intelligence agencies can query by using Americans’ names, Social Security numbers, passport numbers, phone numbers, email addresses, and other personally identifiable information.
The end-of-the-year reauthorization battle has left the opportunity for civil libertarians, progressive Democrats, and conservatives to push for potential reforms to Section 702.
A spokesperson for Sen. Steve Daines (R-MT) told Breitbart News, “Given the FISA Court’s infringement on the liberty of private law-abiding citizens, Senator Daines believes Section 702 is in need of significant reform and will evaluate legislation that comes before Congress to ensure it doesn’t violate the Fourth Amendment of the Constitution.”
House Judiciary Committee Chairman Jim Jordan (R-OH) told Fox News last fall, “I think we should not even reauthorize FISA, which is going to come in the next Congress.” House Judiciary Committee members typically lean more toward surveillance reforms.
Rep. Darin LaHood (R-IL), a member of the Intelligence Committee, which generally supports surveillance powers, leads a working group to reauthorize Section 702. LaHood said the “possibility of reforms” would be part of the negotiations between both committees.
Sen. Ron Wyden (D-OR), a privacy advocate, has called this bulk collection of Americans’ data a “backdoor search loophole.” Pramila Jayapal (D-WA), the chair of the Congressional Progressive Caucus (CPC), wrote that “any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights.”
The federal government’s use of Section 702 is not without controversy.
Applicants for court orders to wiretap Carter Page, a former adviser to Donald Trump’s 2016 presidential campaign, were, according to an inspector general, riddled with “errors and omissions.” A subsequent report found that systemic “sloppiness” was in unrelated applications.
A routine audit conducted by the Justice Department and Office of the National Director of Intelligence (ODNI) of Section 702 use found that FBI agents often had political overtones for their search queries of the FISA database. This includes “the names of a local political party” to see if it had links to foreign intelligence. The Justice Department reportedly claimed that FBI personnel “misunderstood” the search procedures and that they were “subsequently reminded of how to correctly apply the query rules.”
Wired’s Dell Cameron said DOJ officials had unearthed another incident in which an FBI agent used Section 702 that “lacked a proper authorized purpose”
The investigators said “improper queries” were prompted by a report about an “individual of Middle Eastern descent,” whom a witness claimed “sped” into a parking lot before honking his horn. “A second individual of Middle Eastern descent” then began loading boxes into a second vehicle, said the witness, who noted some of the boxes were labeled Drano, the brand name of a drain-cleaning product.
The report does not opine on whether the tip was the result of racial profiling, and it is widely known that chemicals commonly found in drain cleaners, among other household products, can be used in the creation of homemade bombs. The report only states that the matter was closed prior to the audit, and that it is the FBI’s prerogative to destroy any unminimized data it unlawfully obtained.
The FBI reportedly also conducted thousands of “legally impermissible searches.” The Foreign Intelligence Surveillance Court wrote in a 2018 memorandum that the FBI’s minimization procedures, or as they have been implemented, were not consistent with the FISA requirements or the Fourth Amendment.
The audit also revealed that an FBI agent had also searched the name of a “U.S. congressman” without necessary “limiters.” Rep. Andy Biggs (R-AZ) has pressed FBI Director Christopher Wray to provide more details.
Biggs, in a written statement, said that American intelligence agencies have continued to browbeat lawmakers into not adopting reforms to FISA through “scare tactics.”
“The FBI has crossed the rubicon. I will not allow the FBI to misuse privileged spying powers to conduct rogue surveillance on innocent Americans. I have called for serious reforms or full repeal of FISA for years,” Biggs explained. “Yet, the FBI and federal intelligence agencies use scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm. Well, every American should be scared to know federal agents are spying on them, even if they have nothing to hide.”
Biggs said that he reintroduced his bill, the Fourth Amendment Restoration Act, that would fully repeal FISA, block warrantless surveillance of Americans, and hold any federal official who violates the law accountable.
The Arizona Republican asked rhetorically, “How much longer must we watch the FBI brazenly spy on Americans before we strip it of its unchecked authority? Make no mistake — actors within the FBI and other similar federal agencies who continue to conduct unlawful and unconstitutional surveillance of Americans will be brought to justice.”
Sen. Mike Lee (R-UT) recently grilled Attorney General Merrick over the FBI’s surveillance of Americans, noting that a growing number of Republicans and Democrats are moving to rein in Section 702.
Lee wrote, “Feds shouldn’t have the power to spy on Americans without a warrant under section 702 of the Foreign Intelligence Surveillance Act, which expires at the end of this year. I’m part of a growing bipartisan coalition of senators who won’t reauthorize it without substantial reforms.”
Feds shouldn’t have the power to spy on Americans without a warrant under section 702 of the Foreign Intelligence Surveillance Act, which expires at the end of this year. I’m part of a growing bipartisan coalition of senators who won’t reauthorize it without substantial reforms. https://t.co/MaOpA9mats
— Mike Lee (@BasedMikeLee) March 2, 2023
Rep. Warren Davidson (R-OH) said in mid-February, “Stop spying on American citizens. ‘Surveillance law is stretched so wide and thin that 12333 now significantly overlaps with FISA surveillance, leaving Congress with no choice but to tackle it in the Section 702 debate.’”
Stop spying on American citizens. “Surveillance law is stretched so wide and thin that 12333 now significantly overlaps with FISA surveillance, leaving Congress with no choice but to tackle it in the Section 702 debate.” https://t.co/slVKtUhisy
— Warren Davidson (@WarrenDavidson) February 18, 2023
Former Rep. Bob Goodlatte (R-VA), and former Sen. Mark Udall (D-CO), wrote an op-ed for RealClearPolitics on how Congress can reform FISA. Both former lawmakers are now senior advisers for the Project for Privacy and Surveillance Accountability.
The former lawmakers described what the four principles behind FISA reform should entail:
- First, any surveillance of Americans should be undertaken only pursuant to statute, duly enacted by the people’s representatives in Congress.
- Second, any surveillance of Americans’ communications or other Fourth Amendment-protected data should be undertaken only with a probable-cause judicial warrant.
- Third, any surveillance of Americans should be subject to adequate mechanisms – in both Congress and the judiciary – to ensure accountability for compliance with governing law.
- Fourth and finally, “surveillance” should be defined broadly, to include collection that the government describes as “incidental,” data purchases, searches of databases compiled by governments, searches of private records held by third parties, and similar ways to access our personal information without our consent.
“For years, the intelligence community has misled lawmakers and the public, claiming that Section 702 is targeted only at foreigners, when agencies have been using it to access Americans’ communications,” Udall and Goodlatte wrote. “Especially given that history, these four principles must be woven into Section 702 authority, or Congress should allow that authority to lapse and start over.”
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.