FISA Section 702 – What’s Next?

Ample Time for Debate

The decision by the Trump administration to effectively suspend its push for the reauthorization of FISA Section 702 is a tacit admission of what PPSA has been saying all along: there is no credible national security reason to rush this process.
 
While the statute has expired, Section 702 intelligence collection will continue under orders issued by the secret Foreign Intelligence Surveillance Court (FISC) until March 2027. In the meantime, there have been zero reports of problems with intelligence collection – which, to be sure, would be trumpeted by the intelligence community if that were the case.
 
We don’t know when the current legislative muddle on the Hill will clear. We do know that when it does, it will be important to get it right in the next round.
 
Background

This issue deserves debate and deep attention by Congress. Section 702 is the national security law enacted by Congress to enable the surveillance of foreigners on foreign soil, but has been used in recent years to warrantlessly snoop on the international communications of Americans millions of times. Despite procedural reforms enacted into law two years ago, these changes have done little to address the risks of Section 702.
 
Consider this: Earlier this year, the FISC publicly acknowledged the existence of continuing major compliance problems with Section 702 directly related to Americans’ constitutional rights. The court objected to how the FBI, CIA, and NSA use filtering tools to process our messages.
 
While the administration appeals the court’s finding, Congress and the American people are not permitted to know the exact nature of these compliance issues. With the luxury of time, shouldn’t Congress insist on a public accounting of ongoing problems with Section 702 and Americans’ privacy?
 
What to Ask for When Section 702 Reemerges

It is important to keep all this in mind when the current entanglement clears and Section 702 comes up for a vote again. House leadership tried and failed three times to force a vote on Section 702 reauthorization, breaking with tradition by preventing debate on meaningful amendments.
 
The same approach also failed once in the Senate. Leadership in both houses repeatedly tried to push the next reauthorization of FISA Section 702 between three and five years from now – a key reason for the failure of this strategy. One key principle Congress should uphold:
 

• Reject any reauthorization for Section 702 that is longer than two years. AI is supercharging surveillance at breakneck speed. Given the ongoing reports of Section 702 violations – and the escalating ability of AI to pull data from disparate sources to create dossiers on every American – Congress will need to keep oversight prompt.

 
Whenever the path opens to focus again on reauthorization, Members of Congress must insist that this time they be allowed to vote on key amendments:

• Add a warrant requirement for Section 702 searches of Americans’ communications.
  
  
• Apply a warrant requirement to the federal government’s purchase and review of Americans’ sensitive personal data – closing the data-broker loophole.
  
  
• Narrow the definition of “electronic communication service provider” to exclude countless small businesses – and even houses of worship – from being forced by the NSA to assist in spying on customers and congregants. 
  
  
• Stop political abuses in secret FISA Court cases by (a) requiring non-partisan amici to advocate for the American public in sensitive cases and (b) enhancing penalties for government misbehavior.
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• End the obstruction of key Members’ access to the FISA court.

 
Until now, the terms of the debate have been dictated to majorities in the House and Senate. Those dictating those terms have proved unable to enforce them and are now tangled up in a confusing web of competing priorities.
 
It is time for a bipartisan majority to step in and impose clarity. When Section 702 moves forward, it must be with debate over meaningful guardrails to protect the American people from rampant government surveillance.

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