Why We Oppose a “Clean” Extension of FISA Section 702

Why does PPSA oppose a “clean” extension – without any changes or reforms – of the scandal-ridden Section 702 of the Foreign Intelligence Surveillance Act (FISA)? Recent history shows how much is at stake when the U.S. House votes in April on whether to reauthorize this surveillance authority, and why Congress must allow time for significant debate and reforms.

Section 702 was enacted by Congress to enable U.S. intelligence agencies to surveil foreign threats on foreign soil. The intelligence community maintains that the communications of Americans are swept up in the National Security Agency’s global trawl only “incidentally.”

Patrick Eddington, a former CIA officer now a Cato Institute policy analyst, writes that the rub is that “the practice is not incidental but a predictable, systematic, and – from the government’s perspective – valuable byproduct of the program.”

Here are some examples of what “incidental” looks like:

• The FBI in 2021 conducted more than 3 million warrantless searches of Americans’ communications under Section 702. This was an astonishing abuse of a surveillance power that Congress designed for foreign surveillance, not warrantless surveillance of Americans.

 

• The FBI, in violation of its own rules, illegally searched for the communications of 19,000 donors to a congressional campaign, of multiple U.S. government officials, of journalists, of political commentators, of a local political party, of people who came to the FBI to perform repairs, of victims who approached the FBI to report crimes, of business, religious, and community leaders who applied to participate in the FBI’s “Citizens Academy,” of college students participating in a “Collegiate Academy,” of police officer candidates, of colleagues and relatives of FBI agents, and of Black Lives Matter and January 6 protesters.

 

• Some of the most egregious improper queries occurred after the FBI implemented new rules to curb abuses. In April 2023, a FISC opinion revealed that the FBI in 2022 dipped into Section 702 data to warrantlessly spy on a U.S. Senator, a state senator, and a state judge.

 

• Just last week, the FBI admitted that it has resumed collecting Americans’ location data and movements – where we go and potentially those we meet with – by purchasing that data from third-party data brokers. Though this is not a Section 702-authorized program, it is a clear sign of the hunger the government has for collecting our data without a warrant.

Three evils emerge from what has become a routine domestic surveillance program.

• The first evil is that warrantless surveillance of Americans – which completely sidesteps the Constitution’s Fourth Amendment requirement for a probable cause warrant – gives the FBI a “backdoor search” loophole. By conducting fishing expeditions, the FBI can develop predicates for investigating Americans outside of constitutional boundaries.

The intelligence community objects to this characterization, stoutly maintaining that Section 702 is not directed at Americans. To quote Eddington again:

“The Foreign Intelligence Surveillance Court (FISC) and multiple congressional oversight reports have documented thousands of such searches annually, many involving wholly domestic criminal investigations with no foreign intelligence nexus.”

• The second evil is where this data can go. Once Americans’ data is collected by surveillance programs authorized by Section 702, it can be held for years. With a recent move by the Trump administration to tear down long-standing data silos between the agencies, this information could soon be at the fingertips of dozens of federal agencies, including the IRS, the Department of Homeland Security, and the ATF.

 

• The third evil is the ability of AI to quickly turn vast amounts of data from domestic surveillance into actionable intelligence against Americans.

PPSA agrees that Section 702 is an important authority, needed to keep Americans safe from foreign threats. We also believe that we can protect civil liberties and national security at the same time. There is no reason for Members of Congress to be panicked by a needless legislative game of chicken.
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