A controversial U.S. surveillance program expires this month. Will it be renewed?
Dec 4, 2023

A controversial U.S. surveillance program expires this month. Will it be renewed?

Section 702 of the Foreign Intelligence Surveillance Act allows the government to spy on foreigners overseas. The Brennan Center’s Elizabeth Goitein says loopholes and abuses of the statute have allowed the U.S. government to surveil its own citizens without a warrant.

Three years ago, as millions protested the murder of George Floyd by Minneapolis Police, authorities were watching — in more ways than one. The FBI, we now know, used Section 702 of the Foreign Intelligence Surveillance Act to investigate if those protesters had terrorist ties.

When Section 702 became law in 2008, the intelligence community argued collecting phone calls, texts and emails of people outside of the U.S. could protect against terrorism.

But the communications of many Americans have also been collected, all without the required warrants. The government then decides whether to search through that data. It’s a process critics call “backdoor searches.”

Now, Section 702 is set to expire at the end of the month.

Marketplace’s Lily Jamali spoke with Elizabeth Goitein, senior director of liberty and national security at the Brennan Center for Justice, about what members of Congress are considering as they decide whether to extend Section 702.

The following is an edited transcript of their conversation.

Elizabeth Goitein: The primary question is whether the government should continue to be able to have warrantless access to this information for purposes of essentially spying on Americans. And really, I think there’s a pretty strong consensus emerging that it is not acceptable to go forward with the status quo. The primary reform that’s under consideration is a requirement that the government obtain a warrant before searching Section 702. For Americans’ communications, it just makes sense. The reason the government was able to obtain these communications without a warrant is because the government certified that it was not targeting Americans. So, if the government changes its mind and decides to search for Americans communications, it should have to go back and get the warrant that it skipped at the front end.

Lily Jamali: Spying on the Black Lives Matter protesters in 2020, which we mentioned earlier, is just one example of how this has been used. What are some others?

Goitein: So even the FISA court, that’s a special court that oversees section 702 surveillance, has acknowledged that the FBI has engaged in widespread and persistent violations of the minimal rules that are in place to govern these backdoor searches, as they’re called. The rules that the FISA court has approved require that it has to be reasonably likely that these searches are going to return foreign intelligence or evidence of a crime. But there have been widespread and persistent violations of that standard and they have included some pretty shocking abuses, including warrantless searches for the communications of Black Lives Matter protesters, also members of Congress, journalists, a local political party, and in one case, more than 19,000 donors to a congressional campaign.

Jamali: Based on what you’re describing, it sounds like the intelligence community has really crossed a line in the use of this section of the law.

Goitein: Absolutely. And they acknowledge that they’ve crossed a line. But at the same time, they’re resisting any sort of reforms to the law that would make it harder for that line to be crossed in the future. They’re resisting any meaningful reforms, they’re willing to accept a codification of some of the changes they have already made to their own procedures, like additional training requirements and supervisory approval requirements. But we’ve already seen that those changes are inadequate, because by the government’s own numbers, since those changes were put in place, the FBI is continuing to violate its own rules at a rate of about 4,000 violations per year. And those violations are continuing to include some very serious abuses, including searches for the communications of a US senator, a state senator, and a state court judge who contacted the FBI to reports civil rights violations by a local police chief.

Jamali: What would you say to someone listening who might think that they have nothing to hide and so maybe they shouldn’t care if the government knows, say, who they’re calling on the phone?

Goitein: Well, I think if you trust that every FBI official and every government official will always do the right thing and never abuse their authority to do something other than try to enforce the rule of law, then maybe that makes sense. But if you recognize that, in fact, there’s been a long history of abuses by the intelligence community where Americans were spied on for the purposes of suppressing civil rights movements and anti-war movements and suppressing political dissent or going after political enemies, then I think it’s pretty clear that we do have to make sure that there are checks and balances in place to protect American civil liberties.

Jamali: What are the government’s objections to a requirement for warrants?

Goitein: The government doesn’t want a warrant requirement. No intelligence or law enforcement agency has ever supported restrictions on surveillance. And it’s not a mystery why they oppose surveillance reforms. From their perspective, it makes their job harder. They will always prefer to be able to get more information with fewer checks. But that’s not the balance the Framers struck in the Fourth Amendment.

The administration mostly tries to change the subject to how vital Section 702 is to national security. But of course, that’s not the question. The question is whether a warrant requirement for backdoor searches with appropriate exceptions for consent or emergencies would undermine Section 702’s national security value. And the government has really put forward no evidence of that. It’s only been able to identify a handful of cases in which backdoor searches have been useful. And in each of those cases, it appears likely that the government could have either obtained a warrant or invoked the exigent circumstances exception or obtained consent in cases where the search was conducted to identify potential victims.

The administration also says it’s unworkable to apply for 200,000 warrants a year, particularly since the government lacks probable cause in the vast majority of these cases. But the fact that the government is searching for our private communications 200,000 times a year without probable cause is hardly an argument against getting a warrant. It’s exactly why we need warrants. Warrant requirements constrain surveillance, that’s a feature not a bug.

Jamali: This question of whether we sunset, reform or reauthorize section 702, is this a partisan issue?

Goitein: It’s not a partisan issue. The last few years have been a real wake up call for lawmakers on both sides of the aisle. The FBI’s abuses of Section 702 have targeted Americans across the ideological spectrum from Black Lives Matter protesters to people suspected of involvement in the events of January 6, 2021. As a result, there’s broad bipartisan support for Section 702 reform in a Congress where bipartisanship is usually in pretty short supply.

Jamali: What are some of the larger lessons that we’ve learned over the course of this debate?

Goitein: I think the debate over Section 702 has been a real eye opener for members of Congress and for the American public. I think that lawmakers and the American public simply weren’t aware of how prevalent warrantless surveillance of Americans has become as a result of changes in the law like Section 702 and changes in technology since 9/11. And I think at some level, people really didn’t believe that the surveillance abuses of the 1960s and 70s could happen in the modern era. But whenever you have strong surveillance powers with inadequate legal safeguards, there will be abuses, there will be people targeted based on their race, their religion or their politics. That’s the lesson Section 702 has re-taught us and I’m hopeful that this realization will catalyze some badly needed changes in the law.

More on this

When Congress enacted FISA Section 702 in 2008, it effectively legalized what had been a secret program called Stellar Wind set up by the administration of George W. Bush after the 9/11 attacks. The Washington Post reports that in 2004, top Justice Department officials nearly resigned over “electronic surveillance orders that they believed to be illegal.”

Advocates of Section 702 reform cite how the provision has been used against defendants in criminal prosecutions. The government is supposed to disclose when it plans to use evidence collected under Section 702 but it has only provided notice to nine defendants in 15 years and to zero over the last 5 years, according to the Electronic Frontier Foundation. The EFF says Congress should require the government to notify defendants when Section 702 is their only source of evidence.

Correction (Dec. 4, 2023): A previous version of this story incorrectly transcribed the guest’s answer about the federal government’s objections to a warrant requirement.

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