Last week, leading civil libertarians – including PPSA’s own Senior Policy Advisor Bob Goodlatte – addressed Members of Congress and staff in a virtual conference detailing the need to add reforms to Section 702 of the Foreign Intelligence Surveillance Act.
Rep. Zoe Lofgren (D-CA) posted a particularly succinct and yet comprehensive description of the principles at stake in this debate. She addresses FBI Director Christopher Wray’s admission that the Bureau had purchased Americans’ location information without a court order. She noted the habit of the government to purchase our most sensitive data, bypassing “the Fourth Amendment simply by writing a check.”
Rep. Lofgren sets out what’s wrong, what needs to change, and the growing bipartisan determination to get real reform this year. She reminds us that “Congress can enact privacy protections for Americans without compromising national security, as it has done many times in the past.”
Left Hooks and Right Jabs on Section 702
In this corner, we have Andrew Napolitano, libertarian-leaning former judge writing in The Washington Times. And in this corner, we have Bill Scher, liberal politics editor for The Washington Monthly.
Both men recently penned persuasive pieces about Section 702. Reading their articles in succession can be a vertigo-inducing experience. They look at the same federal surveillance authority embedded in the Foreign Intelligence Surveillance Act but see vastly different worlds.
Napolitano makes the case that Congress should allow Section 702 to expire at the end of this year. He traces the expansion of this authority – designed by Congress to allow U.S. intelligence agencies to track foreigners for the purpose of catching terrorists and spies – enabling domestic spying on U.S. citizens.
He concludes that Congress should allow Section 702 to die because it “permits the FBI to search those  databases without a search warrant, and if the NSA learns of evidence of criminal behavior without a warrant, requires it to share that evidence with the FBI.” He concludes that any Member of Congress who votes to reauthorize Section 702 “is unfit for office.”
Bill Scher describes the history of FISA, Section 702, and how partisan support for it has flipped back and forth. He notes that the Privacy and Civil Liberties Oversight Board (PCLOB), an independent watchdog set up by Congress, praised Section 702 in 2014 for contributing to “well over one hundred arrests on terrorism-related offenses.”
Scher acknowledges that the FBI is “overreaching” and has “given its critics plenty of fodder.” An Office of the Director of National Intelligence audit found that the FBI between December 2020 and November 2021 performed nearly 3.4 million queries on Americans, although Scher qualifies that this number contains large redundancies.
Scher buys into the argument that the FBI’s compliance is a problem of simply misunderstanding the querying rules. He adds that recent upgrades in FBI programs allow, as FBI Director Christopher Wray told Congress last week, a reduction of queries of Americans of 93 percent from the prior year.
What does PPSA say?
An FBI official has since disclosed to The New York Times that the actual number of individual Americans targeted with Section 702 queries in that roughly one year period is 204,090 times. That’s a lot less than 3.4 million, but it is still equal to about 560 searches per day, or roughly the population of Richmond, Virginia, illicitly searched every year.
Nor does Scher mention the change in attitude at PCLOB. Travis LeBlanc, who sits on the PCLOB Board, says: “We have a large number of compliance issues that we’ve seen over the years and the compliance issues particularly around U.S. person queries are quite significant.”
Most damningly, LeBlanc added that there are “minimal to negligible examples of the value” of domestic searches to national security. The FBI has used Section 702 data to do background checks, and in crimes ranging from bribery to health care fraud, hardly the stuff of national security.
Concerning the FBI’s learning curve, pardon us if we’re suspicious that the Bureau has taken 14 years to wrap its head around the need to use a warrant when checking data to investigate Americans. Yes, the program is complex. But 14 years? And if the Bureau truly has come up with methods of ensuring compliance, what harm would it be to add an explicit requirement for a probable cause warrant when investigating an American?
About Judge Napolitano’s piece, we sympathize with his outrage over the sometimes cavalier treatment of the U.S. Constitution. We agree with House Republicans who reject the administration’s proposal for a “clean” authorization without reforms. For Congress to pass Section 702, it will need to be rewritten. Surveillance that impacts Americans should be grounded in statute and Fourth Amendment-protected data should only be examined after obtaining a probable cause warrant.
On the other hand, following Napolitano’s advice and allowing Section 702 to expire would not end the federal surveillance of Americans. It would simply liberate it by permitting the federal government to conduct surveillance under no law, but under an executive order, 12333, without any legal barriers or guardrails.
Scher describes the opposition to reauthorizing Section 702 as coming from the ultra-conservative and ultra-progressive wings of the two parties. This is not the reality we see. We speak to Members of Congress every day. Many thoughtful Members – liberals, conservatives, and moderates – are deeply concerned that we have created a national security exception to the Fourth Amendment.
Bottom line: The opponents of Section 702 should know that reauthorizing this authority with serious reforms would amount to a great victory for civil liberties. The proponents of Section 702 should understand that if they succeed in rejecting these serious reforms, the denial of reauthorization is a real possibility.
Sticking too hard to maximalist positions could resemble a title bout with no winner.
By the end of 2023, Congress must decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Section 702 was intended to provide U.S. agencies with the statutory authority to collect intelligence only from foreigners abroad. Unfortunately, for over a decade, agencies have abused this authority, using loopholes in Section 702 to conduct warrantless surveillance on millions of Americans.
For example, a report published by ODNI in April 2022 disclosed that, in 2021 alone, the FBI conducted as many as 3.4 million searches of Section 702-acquired data for information about Americans and their communications. And in 2018, Foreign Intelligence Surveillance Court (FISC) Judge James Boasberg rebuked the FBI for improper use of 702 databases against Americans. The misuse of this surveillance is “widespread.” The FISC also revealed that the FBI has used warrantless NSA data in a range of cases involving purely domestic issues.
Such a system is worse than broken. It is assembling the elements for a pervasive, unaccountable surveillance state. Congress should not reauthorize Section 702 without making significant reforms to ensure these abuses do not continue under any authority.
Legislation that reauthorizes Section 702 must ensure compliance with key principles:
These principles are critical to Americans’ privacy and civil liberties. In 2023, Congress must end the pervasive abuse of Section 702 and other surveillance authorities.
Fourth Amendment, U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Mark Udall, former U.S. Senator from Colorado and PPSA Senior Policy Advisor, interviews two senior attorneys from the American Civil Liberties Union (ACLU), Ashley Gorski, and Patrick Toomey, about Section 702 of the Foreign Intelligence Surveillance Act.
Sen. Udall says Section 702 was intended by Congress to be a tool to catch foreign spies and terrorists, not to be used for domestic spying. Patrick Toomey notes that it has been used millions of times by the FBI to spy on Americans. Hear:
Finally, hear a review of how Section 702 must be reformed before Congress can consider reauthorizing it.
In today’s public hearing before the U.S Senate Select Committee on Intelligence, Sen. Mike Rounds (R-SD) asked FBI Director Christopher Wray about the need to reauthorize Section 702 authority of the Foreign Intelligence Surveillance Act.
This question was asked in the shadow of a Wall Street Journal story last year reporting that the FBI had conducted up to 3.4 million U.S. person queries in 2021, or warrantless searches of Americans’ personal data from the 702 database.
At the time, the FBI cautioned on background that the number was inflated by the inclusion of Americans’ data in an effort to protect these potential victims from cyberattacks from China, Russia, and other hostile countries. In today’s session, Director Wray said the FBI is “surgical and judicious” in its searches, making big strides in its database systems and training to minimize such intrusions.
Director Wray further asserted that in 2022, the Bureau had achieved a 93 percent reduction in such U.S. person queries. This apparently includes the elimination of those cases that fall in the cyber category. Shortly after, Charlie Savage of The New York Times reported that a senior FBI official clarified that the actual number was shy of 204,090.
In other words, the FBI director today admitted that the Bureau had compromised the Fourth Amendment rights of Americans about 204,000 times in just one year, or about 559 times per day. To put this in comparative terms, Sen. Rounds might want to consider that this number equals the total population of South Dakota’s largest city – Sioux Falls – plus the small city of Aberdeen.
You know you’ve in the hot seat when you get Rep. Pramilia Jayapal, Chair of the House Progressive Caucus; Rep. Andy Biggs, Former Chair of the House Freedom Caucus; and Rep. Warren Davidson, member of the Freedom Caucus and the House Republican Study Committee, on your case.
“This is totally unacceptable AND a great example of why any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights,” Rep. Jayapal tweeted in response to a Demand Progress report on FBI agents “breaking their own rules” and “unlawfully fishing through untold millions of communications that were swept up under Section 702.”
“The government abused its foreign intelligence gathering tools to spy on an unnamed Congressman and a local political organization,” tweeted Rep. Davidson. “These abuses are exactly why Congress must reform FISA this year. Warrantless surveillance of Americans is illegal.”
For years now, PPSA has been filing Freedom of Information requests and motions in federal courts to compel the intelligence community to release documents about government surveillance and unmasking of Members of Congress. We’ve yielded some data, but at times our efforts have felt like the long siege of an impregnable castle.
That stone wall has just been hit by a large boulder catapulted by Rep. Andy Biggs (R-AZ), Chairman of the Judiciary Subcommittee on Crime and Federal Government Surveillance. Rep. Biggs’ letter centers around Section 702 of the Foreign Intelligence Surveillance Act that grants authority to federal agencies to surveil the communications of foreigners located abroad.
Rep. Biggs fired off a letter to FBI Director Christopher Wray that begins by quoting a December report from the Office of the Director of National Intelligence (ODNI) that notes federal agents have used data collected under Section 702 authority to query:
We would add that the ODNI also reported that similar queries included journalists and political commentators. Again, these domestic surveillance queries were conducted out of Section 702 data that Congress explicitly defined as being about foreign intelligence.
Rep. Biggs notes that when Section 702 was last up for reauthorization, Members of Congress had the temerity to consider adding an amendment requiring a warrant for access to 702 data relating to Americans. Strictly speaking, this provision would be redundant, since that requirement is already bright line set out by the Founders in the Fourth Amendment to the Constitution. But mules often need to be struck more than once.
Even this modest step, however, was opposed then by the federal intelligence agencies. Biggs wrote they “used scare tactics to convince legislators that unchecked use of this information is only way to keep our nation from harm.”
Now Rep. Biggs is putting questions to Director Wray, demanding to know if the Member of Congress in the ODNI report was informed of how his name was used in an investigation. Was anyone disciplined for using warrantless surveillance against a Member of Congress? Rep. Biggs asks about how many times queries were performed on other Members of Congress or their staff, political party officials, or campaign personnel and candidates. And then he poses the same questions about the queries concerning a local political party.
Members of Congress and politicians are entitled to the same Fourth Amendment protection as any other American. More to the point, when the rights of a politician are violated – even if it is a candidate you dislike – such a violation affects the political rights of every American.
PPSA has been posing these questions in the form of FOIA requests and lawsuits for years. It is good to know that we now have backup from a leading member of the House Judiciary Committee.
Director Wray, the next move is yours.
Our senior policy advisors, former U.S. Congressman Bob Goodlatte and former U.S. Senator Mark Udall, map out four basic principles all surveillance programs should be subject to by Congress before the reauthorization of Section 702 can be contemplated.
Congress Should Not Reauthorize FISA Section 702 Without Key Principles to Protect Civil Liberties
PPSA has joined with other civil liberties organizations to distribute this message to Members of Congress and their staff.
By the end of 2023, Congress must decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Section 702 was intended to provide U.S. agencies with the authority to collect foreign intelligence. Unfortunately, for over a decade agencies have abused this authority to an extreme degree, using loopholes in Section 702 to conduct warrantless surveillance on millions of everyday Americans.
A report published by ODNI in April 2022 disclosed that, in 2021 alone, the FBI conducted as many as 3.3 million searches of Section 702-derived data for information about Americans' communications. And in 2018, Foreign Intelligence Surveillance Court (FISC) Judge James Boasberg rebuked the FBI for improper use of 702 databases against Americans. The FISC also revealed that the FBI has used warrantless NSA data in a wide range of cases involving purely domestic issues.
Such a system is worse than broken: it is assembling the elements for a pervasive, unaccountable surveillance state. Congress should not reauthorize Section 702 without making significant reforms to ensure these abuses end once and for all.
Specifically, legislation to reauthorize Section 702 should ensure compliance with these key principles:
These principles are critical to protecting Americans’ privacy and civil liberties. We must end the pervasive abuse of Section 702 and other surveillance authorities.
Fourth Amendment, U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
How Can the Government Flout FISA?
Carolyn Iodice of Clause 40 Foundation has penned a brilliant analysis and history of the Foreign Intelligence Surveillance Act (FISA), a worldly examination of how that law operates in practice. Briefly put, FISA is a statute that is often treated by the government not as law that must be obeyed, but as a potpourri to mask the stench of illicit surveillance.
Iodice begins her paper with a report issued earlier this year by Sens. Ron Wyden and Martin Heinrich that the CIA has secretly gathered Americans’ records as part of a warrantless bulk data collection program. This program, the senators noted, works “entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional, or even executive branch oversight that comes with FISA collection.”
To enter the world of FISA is to enter Alice’s Wonderland where agency general counsels talk backwards and agency chiefs assert six impossible things before breakfast. Iodice makes a bold statement in the beginning that the rest of her paper validates:
“In the context of FISA, the government has succeeded in violating the law by using implausible interpretations of statutory language and even by evading the statute entirely. Of course, it’s not uncommon for the executive branch to overstep its statutory authorities, but if FISA is understood to be legally binding on the government’s surveillance activities in the same way that, for instance, the EPA’s authority to set national air quality standards is granted and defined by the Clean Air Act, then the flagrancy and frequency of the government’s unlawful surveillance activities is puzzling. If FISA—a law duly passed by Congress and signed by the president—sets legal rules for surveillance programs, why does the government keep flouting them?”
Unlike with the Clean Air Act, she explains, with FISA there is no agreement where the lines exist between legislative, judicial, and executive authority. Worse still, there is a lack of agreement how far executive authority can be extended when national security is invoked. The need for the Fourth Amendment’s requirement for a probable cause warrant in criminal cases is clear, even if that principle is often now observed in the breach. But the Supreme Court has not supplied much guidance on how the Fourth Amendment applies to operations within the United States that are for intelligence purposes.
The rest of Iodice’s paper tracks the steady weakening of FISA in the post-9/11 world.
This paper is a timely primer for what promises to be a key surveillance debate: By the end of next year, FISA’s Section 702 must be reauthorized or expire. Section 702 grants the intelligence community the authority to surveil foreign intelligence targets. While Fourth Amendment protections prevent Americans from being targeted, the law allows the communications of Americans to get swept up in “incidental” collection. This loophole has been extended to whatever width or shape the government needs to do whatever it wants.
Iodice concludes that if Congress reasserted its authority, or the courts resolved the Fourth Amendment and separation-of-powers issues in FISA, then FISA would operate more like a statute should. In the meantime, civil liberties champions in Congress need to be deadly serious about holding up reauthorization of Section 702 if demands for serious FISA reforms are not met.
The Federal Department of Innuendo?
A witness in the John Durham investigation of the FBI’s Crossfire Hurricane investigation testified that the FBI offered former British MI-6 agent Christopher Steele $1 million if he could corroborate the lurid claims in his infamous report.
The FBI had serious doubts about the reliability of Steele and his report while filing four unverified and false applications for surveillance before the Foreign Intelligence Surveillance Court. This latest revelation shows that the FBI was so desperate to nail down the facts in the Steele Report, paid for by a rival presidential campaign, that agents were willing to give Steele $1 million to prove something – anything – within it. Furthermore, they did this while presenting this report with a straight face as evidence before the secret FISA Court – again, four times.
When you add to this latest revelation the conviction of FBI lawyer Kevin Clinesmith for forging a document to hide Carter Page’s relationship with the CIA, you can see an FBI that uses criminal investigations to advance an explicitly political agenda.
We live in a highly partisan era in which Republicans have one set of scandals to focus on and Democrats have their own. It would be refreshing if Republicans and Democrats would come together to examine the FBI’s actions in detail. The FBI’s interference in a presidential campaign, and therefore the First Amendment rights of every American, casts a shadow on necessary investigations – such as the actions surrounding the Jan. 6 attack on the U.S. Capitol.
“This is yet another reason for Congress to pass long-needed bipartisan reform legislation like the Leahy-Lee Amendment on Amicus Curiae and Exculpatory Evidence Reforms, which would add crucial, common-sense privacy and civil liberties protections to sensitive FISA cases," said Bob Goodlatte, senior policy advisor for PPSA and former Chairman of the House Judiciary Committee.