This piece was first published in The Hill.
This month, Congress engaged in a vigorous debate — albeit one prone to inaccuracies — prior to reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial warrantless surveillance authority.
During the House debate, unfortunately, a mix of Republicans and Democrats voted down an amendment in the form of the USA Rights Act, which would have provided substantial reform. Instead, the chamber passed the House Intelligence Committee’s bill — that bill, as I have previously written, was the worst of numerous options before Congress and will actually expand Section 702 warrantless surveillance.
Just prior to voting, Speaker Paul Ryan (R-Wis.) offered “to bring clarity to the debate” by proclaiming:
“Title I of the FISA law is what you see in the news that applies to U.S. citizens, that’s not what we’re talking about here. This is Title VII – Section 702. This is about foreign terrorists on foreign soil. That’s what this is about.”
If you only knew of Section 702 from the Speaker’s comments, you might think that this warrantless surveillance authority has no impact on Americans. Perhaps that is exactly what President Trump thought after talking to Speaker Ryan. The speaker called Trump just prior to the floor debate, in response to the president’s early morning tweet opposing Section 702 reauthorization. Within an hour of talking to Ryan, President Trump fully reversed his position in a follow up tweet that echoed Ryan’s floor comments nearly verbatim:
“Today’s vote is about foreign surveillance of foreign bad guys in foreign lands. We need it!”While the emphasis on foreigners is correct with regard to “targeting” under Section 702 — the government may only designate foreigners located outside of the U.S. as “targets” for surveillance under the law — the impression that this law is exclusively about foreigners and has nothing to do with Americans is highly misleading.
Section 702 currently has over 100,000 designated targets, and it is not just limited to terrorists or “bad guys,” but rather any foreigner whose communications might relate to the conduct of U.S. foreign affairs, such as diplomats and officials from friendly nations, or even individuals whoprotest outside a U.S. embassy, support a global human rights group, or blog about international relations. The implications of this are profound: Section 702 can monitor innocent foreigners, and in the process sweeps up the communications of the average Americans they’re talking to. It’s for this reason that Rep. Jim Sensenbrenner (R-Wis.) implored members to “Put the F back in FISA” during the debate in calling for reforms.
How many Americans are subject to warrantless surveillance through this process? The government won’t tell us, so we don’t know. After promising Congress and civil liberties groups that it would provide an estimate of how many Americans are affected by Section 702, the intelligence community reneged on its commitment in early 2017, when doing so might have thrown a wrench into arguments for a reauthorization absent reforms. Ultimately, this gambit against offering promised transparency paid off, as the Intelligence Community was not chastised for breaking its promise, but rather was rewarded with an expansion of Section 702 surveillance powers.
Congress failed in its oversight role by not demanding an estimate of how many Americans' communications are swept up by Section 702 warrantless surveillance before passing a six-year extension of the law. Fortunately, it has the potential to remedy this error in the near future. NSA Director Mike Rogers recently announced plans to retire this spring, meaning a new director will need to be nominated and approved by the Senate to head the National Security Agency — the entity that manages all foreign-focused signals intelligence (i.e. communications systems and electronic signals surveillance), which includes all collection of communications under Section 702.
Senators voting on a new NSA director should set a strong but simple condition for their approval: In order to be confirmed, the next NSA director must publicly commit to Congress that the NSA will provide an estimate of the number of Americans affected by Section 702.
Given the intelligence community’s previous agreement to do just this, such a commitment is imminently reasonable. It would also greatly serve the American public by finally providing an idea of how many of us are subject to warrantless surveillance under Section 702, a law that encompasses far more than just “foreign surveillance of foreign bad guys on foreign land.”
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.