Will the Intelligence Community Remove Warrantless Surveillance of Americans from Section 702?

Letter from Attorney General Garland and Director Haines

​Attorney General Merrick Garland and Director of National Intelligence Avril Haines wrote to the leaders of Congress to tell them that they must reauthorize Section 702 of the Foreign Intelligence Surveillance Act – “promptly” – so terrorists and foreign actors won’t attack us.  
 
And to be fair, there are terrorists and state actors who wish to reach into our homeland and do us harm. The attorney general and director inform us that Section 702 data has been used to protect “against national security threats” from China and North Korea. It stopped components for weapons of mass destruction from reaching foreign actors, and disrupted terrorist and cyber threats. To which we say, thank you for your service!
 
Yet, we wish that were all. This letter ignores important failings of Section 702. They write, “Because Section 702 can only be used to target individual non-U.S. persons located outside the United States, it may not be directed against Americans at home or abroad.”
 
This is not, however, what happens. It is what is supposed to happen because Congress explicitly crafted Section 702 to protect us against the kinds of national security threats named in the letter from Garland and Haines. It forbids domestic spying and commands agencies to observe the Fourth Amendment.
 
The secret Foreign Intelligence Surveillance Court revealed in 2020 that the FBI has used Section 702 data in cases that include “health-care fraud,” “public corruption and bribery,” and more serious domestic concerns like extremists and “violent gangs.” The court observed: “None of these queries was related to national security.”
 
Nor did Garland and Haines address the FBI’s warrantless 3.4 million backdoor searches of Americans’ data in 2021 – a figure published by the agency itself, which has also been revealed as “murky,” suggesting that part of FISA reauthorization should require the FBI to get its own data in order. It is this kind of behavior that prompted the FISA Court to issue several opinions finding “widespread violations” by the FBI in its use of Americans’ communications in backdoor searches. One of them was an unnamed Member of Congress. The failure of the government to report systemic non-compliance prompted the secret court to denounce the National Security Agency for an institutional “lack of candor.” As we’ve noted elsewhere, that’s a choice phrase the FBI uses when it terminates an agent for lying to the Bureau.
 
The letter does promise that the intelligence community and Department of Justice are committed “to engaging with Congress on potential improvements to the authority that fully preserve its efficacy,” but no substantive reforms are named. Many civil liberties groups see this letter as a very discouraging opening bid given the massive extent of government surveillance of Americans.
 
The danger for the intelligence community is that if they play a game of chicken with Congress, they might well lose with the expiration of this authority. On the other hand, if they are serious – and are willing to accept an ironclad prohibition of the warrantless surveillance of Americans from Section 702 data – the law should have an excellent chance of being reauthorized before it expires in December.
 
We can protect both national security and the rights of Americans from warrantless government surveillance. We urge General Garland and Director Haines to listen and be willing to live up to the guarantees of the Fourth Amendment.