Intelligence agencies and the Justice Department have gone to Congress this summer, hats in hand, promising it will all be different this time if lawmakers just reauthorize their massive power to spy on Americans without warrants.
“We are committed to addressing mistakes, being transparent with you and the American people, and continually reinforcing a system and culture that protects Americans’ privacy and civil liberties,” read a joint statement from the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency, the Federal Bureau of Investigation and the Department of Justice.
India McKinney is director of federal affairs at the Electronic Frontier Foundation, a nonprofit digital civil liberties organization headquartered in San Francisco.
That would be quite a turnaround after cycles of abuses, warnings and further abuses of Section 702 of the FISA Amendments Act, which authorizes spying on foreign actors in ways that sweep in millions of Americans’ online communications. A document declassified in May revealed that the FBI abused this law more than 278,000 times just from 2020 to early 2021, using it to spy on crime victims, Jan. 6 riot suspects, people arrested at protests after the police killing of George Floyd, and congressional campaign donors.
The law will sunset this year unless it’s reauthorized. Congress must either curtail it severely or let it die in ignominy.
This mess has been decades in the making. Congress passed the Foreign Intelligence Surveillance Act in 1978 after a special investigative committee uncovered illegal and unconstitutional spying of Americans by the NSA, CIA, FBI, and IRS. This law created a secret FISA Court to oversee the targeted spying on specific and identified agents of foreign powers.
After the Sept. 11, 2001, attacks, President George W. Bush bypassed the FISA Court and began illegally spying on domestic communications en masse. Journalists and whistleblowers exposed the illegal surveillance years later. But, rather than stopping it, Congress passed the 2008 FISA Amendments Act to justify more spying.
Section 702 prohibits intentionally targeting Americans, yet the NSA “incidentally” acquires a vast number of innocent Americans’ communications without warrants regularly. FISA Court judges never learn about, let alone approve, surveillance targets under Section 702; they know only what the NSA chooses to tell them.
Although the law requires “minimizing” sharing and retention of Americans’ data, rules still let the NSA share a lot of this data with the FBI, CIA and National Counterterrorism Center, all of which retain it for at least five years. Since Section 702 last was reauthorized in 2018, it has become even clearer that it’s a rich source of unconstitutional backdoor access to Americans’ private phone calls, texts and emails.
As early as 2011, the FISA Court held that the NSA’s collection of internet communications violated the Fourth Amendment. Congress in 2018 added a provision requiring the FBI to get a warrant before accessing Americans’ communications in a small subset of criminal investigations — but the government admits the FBI has never adhered to that requirement.
In fact, despite Congress’s clear instructions that the agencies minimize the sharing, use and retention of the “incidentally” collected data, the Office of the Director of National Intelligence’s latest Annual Statistical Transparency Report showed the FBI in 2021 queried the Section 702 data of potentially more than 3 million “U.S. persons” without warrants.
They’re asking for trust that they simply haven’t earned.
Congress should require agencies to get a warrant in criminal investigations, or a FISA order in foreign intelligence investigations, before searching Section 702-acquired information for Americans’ communications. It should ensure that the FISA Court can hear from well-informed advisers when reviewing the government’s claims and requests. And it should set limits to shield ordinary private citizens who are unlikely to be communicating information about foreign threats.
The Constitution doesn’t allow this kind of dragnet surveillance of Americans. Congress must act decisively to stop it once and for all.
India McKinney is director of federal affairs at the Electronic Frontier Foundation, a nonprofit digital civil liberties organization headquartered in San Francisco.
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