A Coalition that Spans America Tells Congress How to Reform Section 702

When organizations from across the political spectrum speak with one voice, Congress should listen. That is especially true now after four efforts failed in the House and Senate to force through the reauthorization of a prime surveillance authority without any votes on reform amendments.

What should be next? Clearly, the leaders of both houses are going to have to open up this process and allow a bipartisan majority to be heard.

A recent letter from the Surveillance Reform Coalition, which brings together an unusually broad alliance of civil liberties advocates, privacy organizations, and constitutional conservatives, points the way forward.

PPSA has joined with our allies to urge Congress not to reauthorize Section 702 of the Foreign Intelligence Surveillance Act while leaving intact loopholes that permit warrantless access to Americans' communications and personal data. 

As the coalition notes, Congress has before it several proposals that would preserve foreign intelligence collection while strengthening constitutional safeguards for Americans. The letter highlights four reforms that should be given a vote.

• First, Congress should require a warrant before the government can search Americans’ communications collected under Section 702.
  

This reform addresses the “backdoor search” problem of government collecting intelligence and evidence outside of the constitutional framework. Although Section 702 is supposed to target foreigners overseas, Americans’ emails, texts, and calls are routinely swept into the database. Agencies can then search those communications without obtaining a probable-cause warrant.

• Second, Congress should close the data broker loophole.

Federal agencies should not be allowed to purchase Americans’ location histories, browsing records, app data, and other sensitive information from commercial vendors when obtaining the same information directly would require a warrant. Privacy advocates increasingly warn that advances in artificial intelligence are making such databases even more invasive and revealing, allowing the government to create dossiers on every American.

• Third, Congress should fix what has come to be called the “Make Everyone a Spy” provision – the overbroad electronic communication service provider language added to Section 702 in 2024.

This provision dramatically expanded the categories of businesses and even houses of worship that can be compelled to assist government surveillance operations.
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• Fourth, the coalition urges Congress to strengthen oversight by allowing highly credentialed civil liberties experts with high-level security clearances – called amici – to advise the secret Foreign Intelligence Surveillance Court (FISC) in sensitive cases that could have broad impacts on Americans’ civil rights.

Independent amici before the FISC would help ensure that privacy and civil liberties interests are represented in proceedings that otherwise occur entirely behind closed doors. Stronger participation by these advocates would increase accountability and public confidence. 

In addition to these four reforms, our Coalition has one more requirement:

• Congress must also include no more than two years for the next reauthorization. With artificial intelligence evolving at breakneck speed, and the Section 702 debate providing Congress with its only opportunity to conduct oversight of the intelligence community, a shorter window for reauthorization is an absolute necessity.

Our coalition's recommendations are not radical. They are constitutional guardrails designed to ensure that foreign intelligence authorities remain focused on foreign threats rather than becoming tools for warrantless access to Americans' private lives.
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Congress can preserve intelligence collection while restoring Fourth Amendment protections. The question is whether lawmakers will insist on reforms – or once again be told to vote first and ask questions later.

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