A controversial section of federal law that gives U.S. intelligence agencies the ability to conduct warrantless surveillance of the communications of non-U.S. persons abroad will expire at the end of the year, creating pressure on Congress to renew it, even as privacy activists demand that it be reformed.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows electronic surveillance of non-U.S. persons overseas and outside the United States for purposes of national security. It also contains a provision allowing for surveillance of foreign intelligence targets within the U.S., subject to the approval of a special Foreign Intelligence Surveillance court.
Because the surveillance of foreign nationals can often pick up the communications of American citizens who are not its direct target, many civil liberties organizations believe FISA operations violate legal protections on individual privacy. Adding to that concern is the fact that the information collected as part of FISA surveillance can be queried by domestic law enforcement agencies, such as the Federal Bureau of Investigation, without a warrant. Critics say this practice amounts to “backdoor searches.”
Investigations in recent years have found numerous instances in which law enforcement agencies have abused the FISA process to obtain access to information about U.S. nationals. That includes operations that gathered information about former President Donald Trump’s 2016 campaign team and others that targeted the leaders of the Black Lives Matter movement.
Rights groups object
Jeramie D. Scott, senior counsel and director of the Electronic Privacy Information Center’s (EPIC) Project on Surveillance Oversight, told VOA that his group believes the law should only be renewed if major safeguards are added.
“EPIC and our coalition partners have been very clear that Section 702 should not be reauthorized without significant reforms, including a warrant requirement for searches of U.S. persons’ information,” he wrote in an email exchange.
Kia Hamadanchy, a senior policy counsel with the American Civil Liberties Union, said that his organization has been challenging Section 702 since the day FISA was signed into law, and that its opposition continues.
“We have serious, serious concerns with how the problem is being operated,” he told VOA. “Over the last 15 years, we've seen a whole host of abuses. … So, our current position is that Section 702 should not be reauthorized absent fundamental reform.”
Law enforcement cites need
In an appearance before the House Committee on Homeland Security on Wednesday, FBI Director Christopher Wray delivered prepared testimony in which he outlined a broad range of security threats facing the country, and said that allowing Section 702 to expire, or restricting its use, would make the country less safe.
“Loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks,” Wray said. “For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats.”
At the same hearing, Christine Abizaid, director of the National Counterterrorism Center (NCTC), described Section 702 as essential to protecting the country against terrorist attacks.
“One of the most important questions for NCTC to determine is whether international terrorists could gain access to and pose a threat to the Homeland,” Abizaid said in her prepared testimony. “Section 702 is essential for our ability to do that, and without it, the United States and the world will be less safe.”
Different tracks in Congress
There appear to be at least two competing Section 702 reauthorization proposals making their way through Congress.
Last week, a bipartisan group of lawmakers from both the House of Representatives and the Senate announced the introduction of the Government Surveillance Reform Act, which would reauthorize Section 702 with significant restrictions.
Among other things, the bill would require domestic law enforcement agencies to obtain a warrant before searching FISA data for information about American citizens. It has been endorsed by a large number of civil liberties organizations.
“Americans know that it is possible to confront our country’s adversaries ferociously without throwing our constitutional rights in the trash can,” said Senator Ron Wyden, one of the co-sponsors, when the bill was introduced. “But for too long, surveillance laws have not kept up with changing times.”
Narrower reform
On Tuesday, the news organization Politico obtained a set of talking points outlining the shape of a competing Section 702 reauthorization proposal being considered by the House Permanent Select Committee on Intelligence. The restrictions it would place on law enforcement use of Section 702 are fewer. For example, domestic law enforcement agencies would only need to obtain a warrant to search FISA data for “evidence of a crime.”
Rights groups criticized the intelligence committee’s version of reform for not going far enough.
“Limiting a warrant requirement to ‘evidence of a crime’ searches does little to address the well-documented abuses of the 702 authority,” said Scott of EPIC. “Furthermore, any serious proposal for reform needs to go beyond 702 to close similar loopholes that allow the government to obtain Americans’ information without a warrant. To not do so is to not take Americans’ privacy and civil liberties seriously.”
