Intelligence Community MYTH: To talk about anything other than Section 702 during the reauthorization debate is a distraction.
FACT: Section 702 is only one of many ways the government collects and searches through Americans’ private communications and data without a warrant. If we do not close all the loopholes that allow for illicit surveillance, then the government will seamlessly shift over to alternate ways of watching our every action, move, and utterance.
One of the most dangerous forms of lawless surveillance is the widespread practice of government agencies buying up Americans’ sensitive digital communications, geolocation histories, and other private information from third-party data brokers.
Federal agencies from the IRS, to DHS, FBI, DEA and DoD routinely purchase and access data of American consumers scraped from apps and social media to review our online search histories, location histories, and communications from texts to phone calls and emails. The government, for example, has purchased data from religious apps and dating apps. Government attorneys assert that this is lawful because the Fourth Amendment forbids “seizures” of our papers and effects, when in fact they are merely buying it.
This sophistry must be countered. We should extend a warrant requirement to data purchases under Section 702 to keep the intelligence community from shifting to a reliance on purchased data or some other authority largely unconstrained by judicial and Congressional oversight.
The government also surveils American citizens through Executive Order 12333 – not a law, just an assertion of authority by the executive branch – with very little (if any) oversight from Congress. Former Sen. Richard Burr (R-NC), a noted champion of the intelligence community, said on the Senate floor in 2020 that 12333 authority allows “the president to do all of this, without Congress’s permission, without guardrails.”
The Section 702 reauthorization is our best opportunity to rein in these and other forms of warrantless surveillance. It is imperative that Congress act on this opportunity. If legislative reforms are narrowly limited to Section 702, the Administration will simply rely more heavily on these loopholes to continue its lawless surveillance of Americans.