Congress should repeal Section 702, a key tool for unconstitutional mass surveillance

A federal law that has enabled massive, secret and unconstitutional surveillance of the private communications of innocent Americans expires at the end of 2023, and Congress should allow it to die.

Section 702, as it is known, was first passed in 2008 as part of the FISA Amendments Act, which updated the 1978 Foreign Intelligence Surveillance Act. The 1978 law enacted reforms in response to abuses by U.S. intelligence and law enforcement agencies.

But it’s now clear that Section 702 is enabling unconstitutional spying on Americans by those same agencies. When FBI Director Christopher Wray appeared before the House Judiciary Committee in July, chairman Jim Jordan, R-Ohio, warned, “There are 204,000 reasons why Republicans will oppose FISA reauthorization in its current form. Two hundred and four thousand times, the FBI improperly searched the 702 database.”

Section 702 allows the government to conduct surveillance of the communications of foreign targets without a warrant and with only minimal oversight by the Foreign Intelligence Surveillance Court. Any communications of Americans picked up incidentally in this process are then retained and shared with the U.S. government intelligence and law enforcement agencies.

In “upstream” surveillance, the National Security Agency (NSA) demands information from internet service providers such as AT&T, collecting and searching billions of messages “to,” “from” or “about” a target, including any identifier such as a phone number or email address associated with that target. In “downstream” surveillance, the government orders communications providers such as Google, Facebook and Yahoo to surrender email, chat or social media messages to and from a target, all without a warrant signed by a judge.

Despite previous efforts to constrain government searches of Americans in the database, the FBI has been caught again and again making improper queries without a warrant or a predicated criminal investigation, as revealed in opinions of the FISA Court that have been released publicly. “Backdoor” searches of the 702 database have been used to secretly scrutinize Americans across the political spectrum, including conservatives, BLM protesters and even donors to a congressional candidate. The Electronic Frontier Foundation, a non-profit that defends digital privacy and free speech, reported that in 2021, the FBI conducted more than 3 million warrantless searches of Americans’ electronic communications captured by Section 702 data collection.

The House Judiciary Committee has set up a bipartisan working group to consider reforms to Section 702, but the Biden administration just released a 42-page report calling for the full reauthorization of the law without changes.

One of the grave policy errors made in the wake of the 9/11 attacks was the enabling of domestic surveillance through secret mass collection of phone data and other electronic communications. The Fourth Amendment specifically forbids the government from conducting unreasonable searches and seizures and requires a warrant for searches, supported by probable cause, and “particularly describing the place to be searched, and the persons or things to be seized.”

National security and homeland security must be protected within constitutional limits. If the FBI wants to search the communications of an American under investigation, it must get a warrant. FBI employees cannot be allowed to secretly search a database of unconstitutionally collected communications to see if they can find something to investigate.

Reforming Section 702 is unlikely to be effective because secrecy makes timely oversight impossible. The law should not be renewed.