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.
Rep. Darin LaHood Reveals that At Least One Member of Congress Was Improperly Surveilled by the FBI – Himself
FBI Director Christopher Wray rankles many Members of Congress and civil libertarians by presenting a smooth, bland, and impenetrable affect when faced with tough questions. He did himself no favors when, responding to criticism about the 17 errors of commission and omission on the Carter Page scandal highlighted by the Department of Justice Inspector General, he said: “Thanks for the constructive criticism.”
Today he brought that poker face to Thursday’s House Permanent Select Committee on Intelligence. When asked about FBI’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) by Rep. Darin LaHood (R-IL), Wray said the FBI had made mistakes in the Page affair under Title I of FISA, another authority under a previous director. By implication, this means that 702 must be hunky-dory.
But this overlooks the acknowledgment by a senior FBI official to New York Times journalist Charlie Savage that the FBI had used Section 702 some 204,090 times in warrantless surveillance of Americans in just one year alone.
Rep. LaHood also dug into Wray on the revelation that at least one Member of Congress had his name used as a query term in one 702 search.
“I want to make clear the FBI's inappropriate querying of a duly elected member of Congress is egregious and a violation [that] not only that degrades the trust in FISA but is viewed as a threat to the separation of powers," LaHood said during the hearing.
Then came a development as close to a Perry Mason moment as a Congressional hearing room has experienced since the early Cold War.
“I have had the opportunity to review the classified summary of this violation, and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was in fact me,” Rep. LaHood said.
Toward the end of his questioning, Rep. LaHood underscored that he is heading the Section 702 reauthorization working group for Congress. Expect LaHood to ask if other Members of Congress were treated the same way by the FBI, with constructive criticism – and new limits on the FBI’s authority – to follow.
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.
PCLOB Board Member: Section 702 Domestic Searches of Americans of “Minimal to Negligible” Value
Travis LeBlanc, board member of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), takes his position as a privacy watchdog seriously. Until the appointment of Sharon Bradford Franklin as PCLOB Chair, LeBlanc was the lone voice of public criticism and questioning of the largely secret activities of the intelligence community.
Expectations for PCLOB have long been low. A report on a surveillance authority, Executive Order 12333, was six years in the making. The public-facing version turned out to be a high school-level paper that seemed written out of Wikipedia. In June 2021, LeBlanc went public with his dissatisfaction with PCLOB’s timidity to explore contentious issues, such as 12333 and a program called XKEYSCORE that allows the NSA to sweep the global internet.
PCLOB of late has been showing its colors as an independent agency. It has long examined Section 702 of the Foreign Intelligence Surveillance Act, which allows intelligence agencies to carry out warrantless data collection. In recent years, there has been mounting evidence that the FBI has used Section 702 data as a “backdoor search” tool to warrantlessly locate information about Americans. The Office of the Director of National Intelligence has reported that the FBI has conducted up to 3.4 million searches for U.S. persons in the body of 702 data.
On Monday, LeBlanc appeared at the State of the Net Conference in Washington, reported by cyberscoop.com.
“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,” LeBlanc said, expressing concern about Congress renewing this authority without serious reforms. He suggested Congress should consider adding a warrant process for searches of Americans.
Most interesting of all, LeBlanc said there are “minimal to negligible examples of the value” of these domestic searches. His statement rebuts the claim in January by Gen. Paul Nakasone, who heads the U.S. Cybercommand, who appeared before PCLOB in a public event to discuss many foreign threats that he said had been detected and neutralized because of Section 702. LeBlanc’s statement adds some missing context to the general’s characterization on the domestic uses of this program. It seems on the domestic side to be all violation and no value, at least from a national security standpoint.
At that same January event, Cindy Cohn of the Electronic Frontier Foundation: “I think we have to be honest at this point that the U.S. has de facto created a national security exception to the U.S. Constitution.” LeBlanc’s statement on Monday seems to add – “and for what?”
Will the Intelligence Community Remove Warrantless Surveillance of Americans from Section 702?
Letter from Attorney General Garland and Director Haines
Attorney General Merrick Garland and Director of National Intelligence Avril Haines wrote to the leaders of Congress to tell them that they must reauthorize Section 702 of the Foreign Intelligence Surveillance Act – “promptly” – so terrorists and foreign actors won’t attack us.
And to be fair, there are terrorists and state actors who wish to reach into our homeland and do us harm. The attorney general and director inform us that Section 702 data has been used to protect “against national security threats” from China and North Korea. It stopped components for weapons of mass destruction from reaching foreign actors, and disrupted terrorist and cyber threats. To which we say, thank you for your service!
Yet, we wish that were all. This letter ignores important failings of Section 702. They write, “Because Section 702 can only be used to target individual non-U.S. persons located outside the United States, it may not be directed against Americans at home or abroad.”
This is not, however, what happens. It is what is supposed to happen because Congress explicitly crafted Section 702 to protect us against the kinds of national security threats named in the letter from Garland and Haines. It forbids domestic spying and commands agencies to observe the Fourth Amendment.
The secret Foreign Intelligence Surveillance Court revealed in 2020 that the FBI has used Section 702 data in cases that include “health-care fraud,” “public corruption and bribery,” and more serious domestic concerns like extremists and “violent gangs.” The court observed: “None of these queries was related to national security.”
Nor did Garland and Haines address the FBI’s warrantless 3.4 million backdoor searches of Americans’ data in 2021 – a figure published by the agency itself, which has also been revealed as “murky,” suggesting that part of FISA reauthorization should require the FBI to get its own data in order. It is this kind of behavior that prompted the FISA Court to issue several opinions finding “widespread violations” by the FBI in its use of Americans’ communications in backdoor searches. One of them was an unnamed Member of Congress. The failure of the government to report systemic non-compliance prompted the secret court to denounce the National Security Agency for an institutional “lack of candor.” As we’ve noted elsewhere, that’s a choice phrase the FBI uses when it terminates an agent for lying to the Bureau.
The letter does promise that the intelligence community and Department of Justice are committed “to engaging with Congress on potential improvements to the authority that fully preserve its efficacy,” but no substantive reforms are named. Many civil liberties groups see this letter as a very discouraging opening bid given the massive extent of government surveillance of Americans.
The danger for the intelligence community is that if they play a game of chicken with Congress, they might well lose with the expiration of this authority. On the other hand, if they are serious – and are willing to accept an ironclad prohibition of the warrantless surveillance of Americans from Section 702 data – the law should have an excellent chance of being reauthorized before it expires in December.
We can protect both national security and the rights of Americans from warrantless government surveillance. We urge General Garland and Director Haines to listen and be willing to live up to the guarantees of the Fourth Amendment.
SCOTUS Denies Wikimedia Case
Civil Libertarians Vow to Reform Section 702
The U.S. Supreme Court today declined to hear Wikimedia v. NSA, a lawsuit challenging the mass, secret surveillance of Americans’ online communications.
The ACLU had gone to court to challenge a National Security Agency program under the Foreign Intelligence Surveillance Act (FISA), which the agency uses to continuously monitor international and domestic communications across the internet’s main pathways.
“In analog terms, it’s as if government agents were opening the international letters passing through a U.S. post office en masse, reading the contents, and then keeping many of those letters in a file for years,” wrote Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, in a recent op-ed.
Goodlatte compared this intrusion by the government into American’s emails, web-browsing content, and search engine queries to the “general warrants” of the colonial era that had helped spark the American Revolution.
“Worse, the government asserts that this case cannot even be litigated,” said Gene Schaerr, PPSA general counsel. “Under the government’s interpretation of the ‘state secrets’ doctrine, major surveillance programs of the government can never be litigated.
“This denial shows all the more reason why Congress needs to step in and use the pending reauthorization of Section 702 – a principal surveillance authority in FISA – to close loopholes the government is exploiting.”
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."