Will President (Trump/Harris) Open Up the Books on Section 702?

​We are about 160 days away from the next presidential inaugural.
 
If Donald Trump returns to the presidency, he will bring with him an innate skepticism of federal surveillance. This is because his campaign and transition (and by extension himself) were the targets of four surveillance orders issued by the secret FISA Court in 2016 and 2017 that were based on a concocted intelligence report and forged document created by an FBI lawyer (later convicted of a felony).
 
But Trump may not have the surveillance skepticism lane to himself. Despite Vice President Kamala Harris having served in a very pro-surveillance administration, her background also reflects skepticism of federal surveillance. This is especially true of FISA Section 702, an authority enacted by Congress to surveil foreign threats located abroad but has come to be also used as a domestic spying authority.
 
As a senator in 2017, Harris co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court to review the contents of Americans’ emails. Did service in the Biden Administration, which opposed warrants, change Vice President Harris’ thinking, or would she revert to her Senate position?
 
We cannot be sure what a President Harris or a President Trump would do in a political and geopolitical environment that is much different from the landscape of 2017. But one useful metric for the next administration would be to know how many “U.S. persons” – or people located inside the United States – have had their communications collected under FISA Section 702.
 
Jonathan Mayer, a professor at Princeton University, served as Harris staffer in the Senate. Last year, Politico’s John Sakellariadis reported that Mayer and his research assistant Anunay Kulshrestha used cutting edge cryptographic techniques to estimate how much U.S. person information is collected by under Section 702.
 
Mayer’s math produces only a partial data set. It also doesn’t count data on people inside the United States who communicate or cooperate with foreign spies or terrorists, which would make them legitimate targets of Section 702. But if fully fleshed out, this form of analysis could give a ballpark idea of how extensively Section 702 databases uses spy techniques that result in gathering massive amounts of private information about thousands, if not millions, of average Americans.
 
Of course, the intelligence community could simply tell us. But the intelligence community, in perhaps a too-clever-by-half response, says that separating out who is and isn’t an American in the database would be exactly the kind of privacy intrusion that groups like ours protest. PPSA holds that if such a count were quarantined only for the explicit purpose of making such a count, it would harm no one’s privacy and serve the purpose of illuminating the nature of Section 702 for policymakers when it comes up for reauthorization again in the spring of 2026.
 
“One of the best ways to understand the risk of incidental collection to U.S. persons is to have a sense of data contained through the authority,” says Travis LeBlanc, a Privacy and Civil Liberties Oversight Board member.
 
There are, however, simpler ways to get at the real number. Congress could demand it by the end of this session. Failing that, a President Trump or a President Harris could simply release that number by executive order.
 
When a surveillance authority hoovers up the private data of Americans, at the very least we have a right to know how many Americans have had their privacy compromised.