As FISA turns 45, time to rethink post-9/11 mass surveillance expansion under Section 702

Forty-five years ago this month, President Jimmy Carter signed the Foreign Intelligence Surveillance Act (FISA) to restrain U.S. intelligence agencies’ power to spy on Americans. A 1976 Senate investigation had found that the FBI’s COINTELPRO surveillance had committed many actions — particularly against Black liberation groups and other targeted organizations — that were illegal, violent, or simply “abhorrent in a free society.” FISA was designed to prevent such violations by regulating national security surveillance, yet 45 years later, it has become precisely what it aimed to restrain: a “domestic spying tool.” One provision of FISA scheduled to expire at the end of this year, Section 702, exemplifies how the nominal progress made in restraining mass surveillance since the 1970s has dramatically backslid since the 9/11 attacks.

Section 702, enacted in 2008, authorizes the U.S. government to warrantlessly vacuum up and store the communications of foreigners abroad who are believed to possess “foreign intelligence information.” The contents of U.S. citizens’ and residents’ text messages, phone calls, and emails are collected “incidentally” when they talk to targeted people. Their communications are then stored in a sprawling database, which several intelligence agencies can access via “backdoor searches” that circumvent the constitutional protections nominally afforded to us. They did so at least 3.4 million times in 2021 alone. Even after remediation measures, in 2022 the FBI still searched for U.S. persons’ communications 200,000 times, including over 8,000 that violated regulations, without a warrant.

Today, critics of Section 702 argue that government agents should at minimum be required to obtain a warrant in most cases before reading Americans’ private messages. Even an independent oversight board recently held that Congress should mandate a court order to access our communications. Section 702 supporters, on the other hand, assert that doing so would compromise national security.

Section 702 is squarely a product of the post-9/11 moment. In the wake of the 9/11 attacks, U.S. intelligence and national security institutions mushroomed, claiming rights to seize more and more of the world’s communications with less and less oversight. Section 702 is designed for foreignintelligence, yet its supporters are defending the right to access data unintentionally collected on U.S. persons, without having to undergo meaningful judicial scrutiny.

Three key issues with Section 702 demonstrate how repurposing FISA for mass domestic surveillance after 9/11 has led intelligence agencies to repeat the violations the original FISA was designed to address: the provision’s abuses, targets, and lack of transparency.

For one, like the FBI’s COINTELPRO decades ago, Section 702 has drawn increasing scrutiny due to recently revealed abuses. COINTELPRO spied on and persecuted LGBTQ government employees; bugged Martin Luther King Jr.’s bedroom; and used wiretaps and infiltrators to undermine the Black Panther Party. Today, the FBI has conducted “persistent and widespread” violations of even the weak Section 702 regulations, by targeting Black Lives Matter protesters, 19,000 donors to a congressional campaign, and relatives of FBI analysts without justification. 

Secondly, Section 702 — like the abuses uncovered over 45 years ago, along with countless post-9/11 programs such as the NYPD’s Muslim surveillance program — may target racialized groups suspected of potential “foreign influence,” such as Muslims, Asian Americans, and Black dissidents. This targeting echoes and reproduces longstanding practices of racialized surveillance. The costs of these practices must always be tallied in terms of speech stifled, social justice movements suppressed, careers destroyed and fear spread.

Finally, it is difficult to fully reckon with these costs, or with who pays them, because the government has long refused public oversight of Section 702. For example, it has blocked civil cases before federal courts can rule on the provision’s constitutionality. It is not even clear how many American citizens and residents Section 702 impacts, since the government cannot say how many are in the database. Without meaningful oversight, meaningful debate is impossible.

Civil liberties groups and other advocates are attempting to move us beyond this post-9/11 déjà vu by demanding that Section 702 either be substantively reformed to protect constitutional rights, or be allowed to lapse altogether. The U.S. government has a long and sordid history of using mass surveillance tools like Section 702 against liberation movements, people of color, and political dissidents; abusing its access to our data; overstating the effectiveness of its programs; and blocking oversight. It is vital to keep these histories in mind. We must not continue repeating the failures of the past.

Jessica Katzenstein is a postdoctoral fellow at Harvard University and the National Science Foundation, and a contributor to the Costs of War project at Brown University’s Watson Institute. Read her research on post-9/11 mass surveillance here.