A Closed-Door Policy

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A closed-backdoor policy

That the federal government is spying on us is not a trope of dystopian fiction or a paranoid speculation. It is a matter of fact. Since the 9/11 attacks, the government has steadily expanded its surveillance authorities. One alarming provision is Section 702 of the Foreign Intelligence Surveillance Act, which allows government agencies “backdoor” access to massive troves of sensitive data on American citizens without a warrant, and in gross violation of our Fourth Amendment rights.

But a new bill introduced in the House and Senate last week — the Government Surveillance Reform Act (GSRA) — has a bipartisan, comprehensive, and impressive slew of reforms that could slam the back door shut. Here’s what you need to know.

In this edition:

• The 411 on 702
• A wide net for abuses
• Opportunities in the GSRA
• Why privacy matters

Section 702 is under a significant spotlight right now. “Recently, some serious abuses of Section 702 have come to light that’ve created a bipartisan swell of support for reform,” my colleague Don Bell, Policy Counsel at POGO, explained to me. “GSRA seems to be posing the best opportunity for reform in 45 years.”

I talked with Don to understand more.

Quick Facts about Section 702

But first, some context

Section 702 is part of the Foreign Intelligence Surveillance Act (FISA), a law enacted in 1978 to actually improve oversight of the use of national security tools for domestic surveillance. The measure was passed by Congress in the wake of an investigation into the illegal surveillance of civil rights organizations, Black liberation groups, and political dissidents by the FBI’s COINTELPRO program from the 1950s to 1971.

Section 702 is a 2008 provision under FISA that grants the government the authority to surveil, without a warrant, any foreign national outside of the United States who is believed to be in possession of “foreign intelligence information.” It allows agencies like the FBI, CIA, and NSA to collect and (indefinitely) store targets’ personal information and e-communications — including any “incidental” communications they have with people inside the U.S. This effectively circumvents the need for a warrant, which is a protection granted under the Fourth Amendment.

But the overbroad authority of Section 702 has made room for abuse. For one, “foreign intelligence information” is not limited to intel related to national security. It can apply to any information regarding foreign affairs — leeway that the government can use to target journalists, whistleblowers, and critics. And because the wide net also captures targets’ communications with people in the U.S., Section 702 is effectively hoovering up Americans’ private text messages, emails, and phone calls in massive quantities.

This information is stored in databases that intelligence agencies can access at will, effectively allowing them to skirt our Fourth Amendment protections against unreasonable searches and seizures by the government.

A foot in the back door

Critics have warned that the loopholes in Section 702 allow intelligence agencies the opportunity to target communities that they deem suspicious because of “foreign influence”: In the wake of the 9/11 attacks, this has meant immigrants, religious and racial minorities, and political dissidents. Just recently, a declassified report revealed that the FBI, through Section 702, had spied on Black Lives Matter protesters, January 6th suspects, and thousands of donors to a political campaign.

Information gathered through Section 702 has been used to prosecute Americans for crimes completely unrelated to national security matters. Last year alone, the FBI conducted over 200,000 backdoor searches of this kind. We don’t even know the full capacity for abuse because the government has repeatedly refused to disclose how many Americans are surveilled under Section 702, nor will it inform defendants if Section 702 formed the basis of an investigation that led to their arrest. And, given the expansion of digital communications in just the last decade, it is difficult to reckon with the breadth of abuse enabled by Section 702.

Just a few recent Section 702 abuses

But there’s hope in the GSRA, which presents the opportunity to not only quash Section 702 abuses but also safeguard our digital privacy as a whole. The GSRA's package of comprehensive reforms pulls from other privacy bills like the Fourth Amendment is Not For Sale Act, which aims to close a loophole that allows the government to purchase Americans’ communications data directly from data brokers. (POGO has advocated hard for this bill.) Don said that the GSRA and the Fourth Amendment Is Not For Sale Act are “inextricably linked.”

Privacy matters.

The great appeal of the GSRA is that it presents the necessary reforms to rein in the “domestic spying tool” that is Section 702. But despite the known threats it poses to our civil rights, mass surveillance is not universally condemned. Many argue that the sacrifice of privacy is a necessary evil for the safety of the country. “Some people believe they are safer because of surveillance,” Don said. “And many other people know they are less safe because of the same practices.”

As a senator, Joe Biden denounced Section 702, saying he wouldn’t “give the President unchecked authority to eavesdrop on whomever he wants in exchange for the vague and hollow assurance that he will protect the civil liberties of the American people.” Now, however, his administration is pushing Congress to effectively reauthorize the provision as-is.

Right now, we are at a crossroads. Congress can either heed the hard-learned lessons of the post-9/11 surveillance state, or risk putting a great many communities at harm again. We’re hopeful and pushing hard for a GSRA win.