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Why can the U.S. government read my text messages?

The U.S. has a history of conducting overly broad surveillance, and now the Biden administration is asking for a dangerous amount of power to keep doing just that. Section 702 of the Foreign Intelligence Surveillance Act (FISA) grants extraordinary power to the intelligence community, allowing it to collect information on any foreigner abroad for foreign intelligence purposes and sweep up tons of information about people in the U.S. The broadly written law, plus the fact that most internet traffic is geographically dispersed, allows the government to collect text messages, emails, and other records, then charge people with crimes not connected to national security. Section 702 is also used to justify snooping on Americans.

In this edition:

• I spy...

• A rubber stamp of approval
• And a sunset on the horizon?

In a recent analysis, POGO Senior Researcher Freddy Martinez explained that, in order to protect the public, Congress should allow Section 702 to expire. I spoke to Freddy to learn more about why we should question the claims made by the intelligence community, and how similar authorizations have expired without issue before.

Read:History Shows Congress Can Sunset Section 702

But first, some background.

The U.S. government has quite the history of domestic spying. In the 1960s and 1970s, surveillance programs targeted civil rights leaders, Puerto Rican activists, the American Indian Movement, outspoken opponents of the Vietnam War, and groups like the NAACP.

After outcry from the public following the many high-profile surveillance scandals of the 1970s, congressional committees began investigating the intelligence community and ultimately created the Foreign Intelligence Surveillance Act (FISA). This also established the Foreign Intelligence Surveillance Court to oversee the law’s application. FISA originally required the government to obtain a warrant in order to collect information involving communications with “agents of foreign powers.” However, in 2008, Congress added Section 702 to FISA, so the government no longer had to obtain a warrant from the Foreign Intelligence Surveillance Court when targeting a foreigner overseas.

The government has been added to the chat. 

The government collects information on these foreigners and stores it in a database for years at a time. And foreigners often communicate with Americans, so the database includes communications those targets of surveillance may have with people in the U.S. — and vast amounts of it, too, made up of emails, text messages, and more.

The FBI, CIA, and National Security Agency often search this database for information on Americans, even though the information was collected without a warrant. That information can be used to prosecute Americans for crimes unrelated to national security.

Additionally, the public doesn’t even know how many Americans are targeted for warrantless surveillance under Section 702. We also don’t know whether certain religious or constitutionally protected activities are targeted, as they have been in the past, or the impact of surveillance on marginalized communities.

Groundhog Day. 

The government claims that Section 702 is vital to our national security and reforms are unnecessary 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.” But we’ve heard similar claims before, and they’re unconvincing.

As Freddy explained, “History shows we should be questioning any claims the intelligence community makes. The community made similar claims about Section 215 of the PATRIOT Act, but when provisions of 215 expired in 2020, the sky didn’t fall.”

Like Section 702, Section 215 allows for the collection of data having to do with foreign intelligence. Remember the Edward Snowden disclosures? Well, Section 215 served as the legal basis for the government’s mass collection of phone records. In 2019, the Justice Department asked for “permanent reauthorization” of several provisions of Section 215. The National Security Agency, Department of Justice, and FBI all described the provisions as “important in national security investigations.” Despite this, the provisions were not reauthorized, and the intelligence community hasn’t gone back to Congress asking for the reauthorizations.

Sunrise, sunset. 

The Biden administration is currently asking Congress to fully reauthorize Section 702. Freddy explained that the intelligence communities’ claims that they can’t effectively do this type of work without getting Section 702 reauthorized are largely overstated. As we saw with Section 215, surveillance authorities can expire, as Freddy said in his analysis, “without cataclysmic effects.” There are problems with Section 702 that have led to all sorts of issues — the FBI improperly searching Section 702 data about a member of Congress, for example. Freddy describes more of these issues in his analysis.

As Freddy sums it all up, “It’s better for deeply flawed programs like Section 702 to sunset rather than continue without serious reforms and changes.”

History shows that overly broad surveillance programs like Section 702 can and should be sunset.