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.