History Shows Congress Can Sunset Section 702

The Biden administration has asked Congress to reauthorize a set of controversial surveillance authorities known as Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 grants extraordinary power to the intelligence community to collect information about foreigners located outside of the United States. The law permits the targeting of any foreigner abroad for foreign intelligence purposes. Section 702 is written very broadly, allowing the collection of information “that relates to the conduct of the foreign affairs of the United States.” Such an overbroad category, coupled with the fact that most forms of internet traffic are geographically dispersed, allows the government to collect and search text messages, emails, and other records, then charge people for crimes that have no connection to national security. Additionally, Section 702 is used to justify snooping on Americans, in violation of the Fourth Amendment.

Reauthorization of Section 702 may be seen as must-pass legislation by the administration, but the intelligence community could have difficulty getting these powers reauthorized due to its inflated claims of necessity, its long history of abusing FISA, and its aggressive attempts at blocking oversight of Section 702. In 2020, a similar set of authorizations — Section 215 — expired with little of the impact that fearmongers warned about. If anything, the sunset of those provisions has demonstrated to the public that we should be wary of any claims that the intelligence community needs certain authorities or reauthorizations, absent strong reforms.

Rubber Stamping Oversight

For decades, the federal government surveilled, disrupted, and otherwise sought to neutralize groups it considered subversive using various spying programs, ramping up significantly during the large-scale civil rights and anti-war movements of the 1960s and 1970s. Many of the groups and individuals targeted were Black, brown, and Indigenous, and targets included Puerto Rican activists, the American Indian Movement, and groups like the NAACP.

In 1971, the public learned about many of these programs when activists began exposing the FBI’s COINTELPRO program, under which much of the bureau’s illegal surveillance ran. Public outcry rose following revelations in 1974 that the CIA engaged in its own large-scale domestic spying operation against the anti-war movement in violation of its charter and statutory authorities.

Following the high-profile scandals of the 1970s, numerous congressional committees began investigating the intelligence community. They recommended reforms that established congressional and judicial oversight of the surveillance of foreign targets, creating FISA. FISA also established the Foreign Intelligence Surveillance Court, which requires the attorney general to submit certifications to the court about which records it seeks and their intelligence value, as well as which procedures it’s following to minimize searching information from people within the United States.

The Foreign Intelligence Surveillance Court can issue warrants for criminal investigations within the U.S., but under Section 702 those warrants are not required for foreign communications. Furthermore, the role of the court hasn’t prevented the National Security Agency (NSA) and other agencies from sharing raw, unfiltered information with the FBI, which allows them to search Americans’ communications without a warrant.

In practice, the Foreign Intelligence Surveillance Court has essentially acted as a rubber stamp for the intelligence community, particularly after 9/11. In 2013, the court approved 100% of the final warrant applications it received, and in 2021 it approved, in part or in full, over 90% of all applications. And oversight from the Foreign Intelligence Surveillance Court hasn’t prevented the intelligence community from routinely misleading the courts by filing problematic search warrant applications or keeping information from Congress and the public. This behavior is a far cry from the “extensive and rigorous oversight by all branches of government” of Section 702 the intelligence community claims takes place.

Crying Wolf

Today, the intelligence community insists that Section 702 is vital to our national security and serious reforms are unnecessary or counterproductive because, according to Assistant Attorney General Matthew Olsen, “if 702 expires or is watered down, the United States will lose critical insights we need to protect the country.” If this sounds familiar, that’s because the intelligence community made the same claims in a similar context three years ago.

On March 15, 2020, a different set of authorizations — Section 215 of the PATRIOT Act — expired after a series of negotiations between the civil liberties community, congressional leadership, and the administration failed to reach an overall agreement that included reforms to those authorizations.

Section 215 allows for the collection of data connected to foreign intelligence. The government relied on Section 215 as the legal basis for its mass collection of phone records, as revealed by the Snowden disclosures. The Justice Department testified in 2019 that it wanted “permanent reauthorization” of several provisions of Section 215. But despite the National Security Agency, Department of Justice, and FBI describing them as “important in national security investigations,” the provisions were not reauthorized.

When key provisions of Section 215 expired in 2020, the sky didn’t fall. Abusive programs, like the NSA’s controversial program to collect massive amounts of phone metadata, were shut down: Their harm was too great and their utility was largely exaggerated. In fact, the largest threats to the public now appear to be domestic threat actors, including violence from white supremacists. Most critically, the intelligence community hasn’t yet returned to Congress to ask for the authorizations to be brought back, which casts doubt on the risks of allowing these authorizations to expire.

As lawmakers begin the process of negotiating the reauthorization of Section 702, it’s important for them to recognize that Section 215 shows surveillance authorities can expire without cataclysmic effects. As with Section 215, the executive branch is now asking Congress to fully reauthorize Section 702’s “critical authorities” with few, if any, changes. Yet lawmakers from both sides of the aisle are rightfully resisting doing so, due to problems with Section 702 specifically and the intelligence community more broadly. The following are some examples of those issues:

• FBI analysts improperly searched Section 702 data about a member of Congress. And, according to a 2021 report, the FBI also “queried the names of a local political party to determine if the party had links to foreign intelligence.” They improperly searched applicants to work with the FBI, tipsters, and potential sources. The Office of the Director of National Intelligence found these improper searches were due to a “misunderstanding” of the query standards.
• A report by the FBI’s Office of Inspector General found that the bureau was not maintaining accurate files for its submissions to the Foreign Intelligence Surveillance Court. Inaccuracies in documents presented to the court are problematic, as each individual fact in the application must be well documented, and the inspector general found the FBI made few efforts to confirm facts in subsequent applications to the court. Similarly, a review by the inspector general found problems in other FISA programs when it reviewed the applications for the monitoring of Carter Page, who was then associated with the Trump campaign.
• A Foreign Intelligence Surveillance Court opinion found a “lack of candor” within the National Security Agency when reviewing procedures analysts use to query known U.S. person identifiers. The court found that because declarations by the agency were misleading, “[the court] does not have sufficient information to assess where the proposed minimization procedures … would comply with statutory and Fourth Amendment requirements.”
• In 2017, the NSA backtracked on an explicit promise it made to Congress to share estimates of how many Americans have had their records collected under Section 702. During a review, also in 2017, the FBI was found to be conducting millions of improper searches. According to the Brennan Center for Justice, rather than alerting the public to these issues, “the government sat on the FISA Court’s October 2018 opinion for almost a year, instead of promptly declassifying and releasing it as envisioned by Congress.”

Beyond improper searches, as Patrick Toomey of the ACLU notes, defendants are often not given notice that Section 702 was used to develop and derive evidence against them and thus cannot effectively challenge the legality of its admission against them in court.

The public still doesn’t know how many Americans are targeted for warrantless surveillance due to Section 702, in part because of intelligence community claims that it’s not possible to obtain those numbers. We don’t know the impact of this surveillance on marginalized communities, or whether certain religious or constitutionally protected activities are targeted, as they have been in the past. We do know the FBI used Section 702 to improperly target someone for being “of Middle Eastern descent” and honking their car’s horn in a parking lot.

The intelligence community has begun asserting that Section 702 should be reauthorized because of its utility in other contexts, like cybersecurity and preventing malign investment by foreign entities in U.S. companies. Congress should seriously question these justifications. FISA was created by Congress to rein in an intelligence community run amok, not to prevent cybersecurity attacks. And, while Congress is welcome to pass strong reforms to prevent foreign governments from purchasing favor in the U.S., FISA is not the proper place to address malign influence in the first place.

Conclusion

Section 702 is an incredibly powerful tool that should not be used as a general mechanism for government investigations. The intelligence community seeks to circumvent the Fourth Amendment by using Section 702 to process and query information it would need a warrant to get in other contexts, without effective oversight or transparency into how many people are surveilled using this justification. Convenience doesn’t negate the strict constitutional limits against warrantless search and seizure. Such surveillance creep is rarely, if ever, pulled back. As we saw with Section 215, it’s better for deeply flawed programs like Section 702 to sunset rather than continue without serious reforms and changes.