Brief Extension for a Bad Law
“I…thank the Congress for its extension of title VII of the Foreign Intelligence Surveillance Act,” read a White House statement on President Joe Biden’s December 22 signing of the National Defense Authorization Act. “My Administration looks forward to working with the Congress on the reauthorization of this vital national security authority as soon as possible in the new year. While I am pleased to support the critical objectives of the NDAA, I note that certain provisions of the Act raise concerns.”
“Raise concerns” is putting it mildly. Congress did no more than kick the can on extending sunsetting FISA powers to April 19 because the surveillance authorized by the law is deeply intrusive and worries civil libertarians in the ranks of Democrats and Republicans, in both the legislative and executive branches, and among the public at large. Those “concerns” may, if we’re lucky, torpedo the whole law.
Nominally, Section 702 of the Foreign Intelligence Surveillance Act (FISA) “enables the Intelligence Community (IC) to collect, analyze, and appropriately share foreign intelligence information about national security threats,” according to the Office of the Director of National Intelligence. But, like so many powers government officials find useful, it’s been applied far beyond its original justification over the years, including to the communications of Americans here at home.
“Foreign” Intelligence Looks Awfully Domestic
Last April and July, the Republican-controlled House Judiciary Committee held hearings to examine “the FBI’s abuses of its Foreign Intelligence Surveillance Act (FISA) authorities, discuss the FBI’s failures to implement meaningful reforms to prevent its abuses, and address the broad issue of warrantless mass surveillance on American citizens.”
A week after the second hearing, declassified documents offered glimpses of how FISA is misused, including improper FBI surveillance of a U.S. senator, a state lawmaker, and a judge.
“The revelation that 702 is used against ‘foreign governments and related entities’ directly impacts Americans’ privacy, as American journalists, businesspeople, students and others all have legitimate reason to communicate with foreign governments,” Sen. Ron Wyden (D–Ore.) responded. “The fact they can be swept up in 702 collection further highlights the need for reforms to protect their privacy.”
Then, in September, the U.S. government’s Privacy and Civil Liberties Oversight Board (PCLOB) weighed in with a report raising concerns about the use and abuse of FISA’s Section 702.
“The Board finds that Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries” in which multiple search terms are run through the system as part of a single action, according to the board’s Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act. “Section 702’s targeting presents a number of privacy risks and harms by authorizing surveillance of a large number of targets, providing only programmatic review of a surveillance program, allowing extensive incidental collection, and causing inadvertent collection.”
How significant are those risks? The FBI has searched its gathered information millions of times for information on “U.S. persons” including citizens, residents, and businesses. “For example, in the twelve-month period ending November 30, 2021, FBI reported 3,394,053 U.S. person queries consisting of 2,964,643 unique query terms, approximately 1.9 million of which were associated with a single cyber threat,” noted the PCLOB.
While FISA is supposed to be directed at foreign threats and only incidentally implicate Americans, some of the queries found by the report were explicitly domestic in nature, including those “related to instances of civil unrest and protests.” The PCLOB, though divided, called for reforms.
The White House National Security Council promptly rejected suggestions that searches about U.S. persons should require court approval, claiming such a safeguard would be “operationally unworkable.” That just added to concerns. After all, if people repeatedly point out abuses of a foreign intelligence law to conduct domestic snooping, and officials deny that’s a problem worth addressing, then the existence of the law and the powers it authorizes should be reconsidered.
Reform or Kill the Law?
“Section 702 is set to expire at the end of 2023. We call on Congress to significantly reform the law, or allow it to sunset,” urged the ACLU.
“Congress must end or radically change the unconstitutional spying program enabled by Section 702 of the Foreign Intelligence Surveillance Act (FISA),” agrees the Electronic Frontier Foundation (EFF).
Promising vehicles for reforming the surveillance law are found in the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act, both of which enjoy bipartisan support in Congress.
“The Government Surveillance Reform Act would prohibit warrantless queries of information collected under Section 702 to find communications or certain information of or about U.S. persons,” explains EFF. The group says the Protect Liberty and End Warrantless Act does much the same as well as “prohibit law enforcement from purchasing Americans’ data that they would otherwise need a warrant to obtain” and it also limits surveillance authority renewal to three years.
“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources,” objected FBI Director Christopher Wray when he addressed the Senate Intelligence Committee in December.
Wray may not have made quite the point that he intended. A de facto ban on abusive domestic surveillance? That sounds like a good start for reforming a law that’s been put to bad use.