With Congress focused on reforming the tax code and replacing Obamacare—plus keeping the government open—there’s little oxygen for other policy issues. But one big issue is sure to get some attention because it expires at the end of September: the government’s surveillance authority.
Government surveillance has been this big issue for 11 years, and much of the current debate boils down to one obscure-sounding but crucial corner of the law. The controversial program is called Section 702, after the section of the Foreign Intelligence Surveillance Act that allows the government to collect the communications of Americans under certain circumstances.
Lawmakers are preparing to reauthorize certain provisions of the FISA law, and Section 702 has become a flash point. Opponents say it infringes on Americans’ privacy; supporters see it as crucial to keeping America safe from terrorists. Proponents of reauthorization, like Senate Intelligence Committee Chairman Richard Burr and Director of National Intelligence Dan Coats, make a simple case for preserving Section 702: Intelligence agencies don’t use it to target Americans deliberately—and if any American’s information is collected, it’s only to protect U.S. national security. In early June, the White House’s top counterterrorism official made this argument in the New York Times.
On its surface, it’s a persuasive case, but these arguments are misleading. What matters isn’t whether Americans were targeted—it’s whether their privacy has been violated. So even if Americans are not technically targeted for surveillance under Section 702, the important part is their communications are incidentally collected just the same. More importantly, it’s completely false that the government can collect Americans’ communications only in cases of national security. In reality, the law is far more expansive: The National Security Agency can collect communications that are just relevant to the foreign affairs of the United States, a huge and dangerous loophole that effectively gives carte blanche to intelligence officials to spy on anyone abroad — including journalists, political and human rights activists, lawyers, scientists, students and business people.
The history of how Section 702 became law makes the breadth of surveillance unsurprising. Congress passed this part of the FISA law in the wake of 2005 revelations that President George W. Bush had been illegally spying on Americans’ phone calls and internet communications with foreigners. Instead of calling the White House to account for its actions, Congress passed Section 702 to authorize a version of Bush’s surveillance program. Supporters argued the law would better protect privacy and impose some level of judicial oversight, but, as we learned from the Snowden documents, which showed the NSA collects everything from phone calls to videos to emails, attachments and more, lawmakers painted with such a broad brush that they failed to achieve those goals. Indeed, a Washington Post sampling of approximately 160,000 communications collected under Section 702 found that nine out of 10 account holders identified in them were not surveillance targets; their communications had been incidentally collected, and about 50 percent were U.S. residents.
The Post’s findings are supported by the judicial record. A FISA Court judge who oversees surveillance under Section 702 found that “substantial quantities” of Americans’ communications are swept up under this authority. How much? We simply don’t know: Recently, Coats announced that he’s either unwilling or unable to provide a rough calculation — even by orders of magnitude — of the number of Americans surveilled under Section 702, despite having been asked for this information by members of Congress for the past six years and having promised to fulfill his predecessors’ commitment to do so during his confirmation hearing.
Once an Americans’ communications have been collected, they’re no longer protected by the Fourth Amendment warrant requirement, which requires the government to show probable cause before searching your communications. The NSA, CIA and FBI are all permitted to warrantlessly search those communications using Americans’ names, phone numbers, email addresses and other identifiers. While the NSA and CIA track how often they conduct backdoor searches—and they happen a lot at those two agencies: 5,288 times in 2016 alone.
The FBI doesn’t track this number at all, but it’s safe to say FBI backdoor searches happen far more often. Indeed, the Justice Department testified before the FISA Court that it conducted backdoor searches so often that it’s akin to how Americans use Google search. Because of that regularity, the government argued that imposing a requirement that agents document a justification for the searches would be too burdensome. This description aligns with published FBI procedures that encourage agents to routinely and warrantlessly search through databases containing Section 702-derived information for Americans’ communications when deciding whether to open the most preliminary phase of an investigation into a target, called an assessment.
These assessments do not need to relate to national security investigations. This means that the vast stores of Americans’ communications that are collected under the guise of national security could be used for fishing expeditions into crimes ranging from tax evasion and fraud to drug sales and theft and everything in between. There is nothing in the law that imposes accountability or limits on how this information can be used, and this is a huge problem for Americans’ civil liberties. Section 702 has no mechanisms to ensure that the large-scale collection it authorizes isn’t used to target vulnerable individuals or communities, or to avoid the warrant requirement that the FBI is ordinarily subject to in criminal investigations.
Because Section 702 is unnecessarily broad, Washington frequently focuses on whether intelligence community officials have intentionally abused or misused the authorities. This distracts from the fact that there have been several recorded instances of significant abuses, albeit unintentional. In 2011, for instance, a FISA Court judge found aspects of Section 702 surveillance to be “deficient on statutory and constitutional grounds.” And last month, the NSA announced that it was ending one of its surveillance programs under the authority called “about collection” because of persistent and systematic noncompliance that infringed upon Americans’ constitutional rights. In its ruling on this instance of noncompliance, the FISA Court accused the government of “an institutional ‘lack of candor.’” The abuses were so severe that Sen. Dianne Feinstein, a historically staunch supporter of Section 702 authorities, called for “about collection” to be prohibited by law.
These instances and a host of others like them highlight how dangerous it would be to permanently reauthorize Section 702, which is what Sen. Tom Cotton has proposed. Forcing authorities to be reauthorized by establishing an expiration date, called a sunset, compels congressional oversight of surveillance laws. Removing the sunset would invite abuse.
Instead of considering a permanent reauthorization of Section 702, we should finally have a full debate about whether Section 702 authorities, as they currently exist, constitute an abuse of Americans’ rights. Congress should consider reforms that would limit the scope of Section 702 so that surveillance is not authorized on broader categories of information that is merely relevant to foreign affairs. Surveillance under Section 702 should be permitted only to counter national security threats like terrorism, espionage and the proliferation of weapons of mass destruction. Congress should also limit the use of information collected under Section 702 to investigations and prosecutions that are related to national security, and it should close the backdoor search loophole by imposing a warrant requirement for searching communications collected under Section 702 using Americans’ identifiers.
These meaningful reform proposals would address the large scale of surveillance, the lack of protections against incidental collection of Americans’ communications, and the nonexistent limits on how information collected under Section 702 can be used for any investigative purpose—all without impacting the intelligence community’s ability to protect national security.
Robyn Greene is the policy counsel and government affairs lead for the Open Technology Institute at New America specializing in issues concerning surveillance and cybersecurity.