Myths vs. Facts: Section 702 of the Foreign Intelligence Surveillance Act (FISA)

​Congress intended Section 702 of the Foreign Intelligence Surveillance Act (FISA) to give U.S. intelligence agencies the authority to collect intelligence from foreigners located abroad.
 
For fifteen years, however, federal agencies have exploited Section 702 and other surveillance programs to conduct warrantless surveillance on millions of Americans. The numbers are staggering: In 2021 the FBI conducted 3.4 million warrantless searches of Americans’ communications obtained under Section 702. Even after an effort to shape up for the reauthorization debate, in 2022 the FBI still conducted more than 200,000 such warrantless searches.
 
Now former intelligence community officials are waging a media campaign to scare Congress into submitting to a “clean” or mildly revised reauthorization of Section 702.
 
Predictably, they are resorting to scare tactics to get their clean reauthorization. Rep. Andy Biggs, Chairman of the House Judiciary Subcommittee on Crime and Federal Government Surveillance, earlier this year warned:
 
“The FBI and federal intelligence agencies use scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm. Well, every American should be scared to know federal agents are spying on them, even if they have nothing to hide.”
 
Below is the first of our “Myths vs. Facts” responses from PPSA to fables being foisted by advocates of the intelligence community.
 
Intelligence Community MYTH: A warrant requirement to search for Americans’ private data and communications in the Section 702 database would be “drastic and unwarranted,” putting the American homeland at risk. Congress must not let Section 702 expire.
 
FACT: We can protect national security and have a foreign surveillance authority that respects the constitutional rights of American citizens.
 
A warrant requirement is by definition not a proposal to let Section 702 expire at the end of this year. Indeed, Section 702 expiration can only happen if surveillance hawks fail to agree to significant reform. They cannot play a game of chicken and then act like Chicken Littles. If national security is being risked by the expiration of Section 702, then it will be the champions of the intelligence community who will cause it to happen.
 
The specific intelligence community argument against warrants when Americans are surveilled makes no sense. The stated purpose of Section 702 is to conduct surveillance of foreign targets outside the United States. The government’s own Section 702 success stories all involve obtaining critical intelligence about plots by hostile foreign actors.  It is wrong and patently absurd to sidestep Americans’ constitutional rights and warrantlessly surveil our own citizens in the name of foreign surveillance.
 
Reform proposals, such as a warrant requirement for the surveillance of Americans’ communications, are not radical proposals. It is the ongoing mass surveillance of Americans who’ve done nothing remotely suspicious by our own government that is radical.