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:

1. Any surveillance of Americans should be undertaken only pursuant to a statute, duly enacted by the people’s representatives in Congress.  
   
   
2. Any surveillance of Americans should be undertaken only pursuant to a probable cause judicial warrant.  
   
   
3. Any surveillance of Americans should be subject to adequate mechanisms—in both Congress and the judiciary—to ensure accountability for compliance with governing law.  
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4. “Surveillance” should be defined broadly, to include (among other things) data purchases, searches of databases compiled by governments, and searches of private records held by third parties.  

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."