Newly-minted FBI Director Christopher Wray threw out several justifications for the continued, warrantless government search of American communications. He’s wrong on all accounts.
In a presentation hosted by The Heritage Foundation, Wray warned of a metaphorical policy “wall” that, more than 15 years ago, stood between the U.S. government’s multiple intelligence-gathering agencies. That wall prevented quick data sharing, he said. It prevented quick “dot-connecting” to match threats to actors, he said. And, he said, it partly prevented the U.S. from stopping the September 11 attacks.
“When people, now, sit back and say, ‘Three thousand people died on 9/11, how could the U.S. government let this happen?’” Wray said. “And one of the answers is, well, they had this wall.”
Wray is concerned with the potential expiration of the one of the government’s most powerful surveillance tools. It’s called Section 702 of the FISA Amendments Act and it allows the NSA to collect emails, browser history and chat logs of Americans. Section 702 also allows other agencies, like the FBI, to search through that data without a warrant. Those searches are called “backdoor searches.”
Congress is considering bills with limitations to backdoor searches—including one bill that we have analyzed—and Wray is against that. Section 702, Wray claimed, doesn’t need limitations, or as he called it, a “self-inflicted wound.” According to Wray, Section 702 is Constitutional, has broad government oversight, and keeps Americans safe.
Let’s see where he’s wrong.
“Section 702 is Constitutional, lawful, [and] consistent with the Fourth Amendment,” Director Wray said. “Every court to consider the 702 program, including the Ninth Circuit, has found that.”
The chasm between Wray’s words and his interpretation is enormous. Have courts “considered” Section 702, as Wray described? Yes. Have any decided Section 702’s constitutionality? Absolutely not.
U.S. courts have delivered opinions in lawsuits involving data collected under Section 702, but no single court has delivered an opinion specifically on the constitutionality of Section 702. It’s an issue that EFF is currently fighting, in our years-long lawsuit Jewel v. NSA.
When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.
Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”
Wray is mischaracterizing the court’s opinion. He is wrong.
“[Section 702] is subject to rigorous oversight,” Wray said. “Oversight, by not just one, not just two, but all three branches of government.”
Wray’s comments again are disingenuous.
U.S. Senators have tried to get clear answers from intelligence agency directors about Section 702 collection. Many times, they have been stonewalled.
When Senator Ron Wyden (D-Oregon) asked former Director of National Intelligence James Clapper: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
“No, sir,” Clapper said. “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
Months later, defense contractor Edward Snowden confirmed that the NSA does indeed collect data on Americans. Clapper clarified his statement: he gave the “least untruthful” answer he could. If intelligence agencies, and their directors, cannot provide honest answers about Section 702, then meaningful Congressional oversight is a myth.
As for judicial oversight, the court that approves warrants under Section 702—known as the Foreign Intelligence Surveillance Court—has rebuked the NSA in multiple opinions. A chart of Section 702 compliance violations, with accompanying court opinions, can be found here.
While Section 702 is subject to government oversight, it doesn’t look like the NSA pays much attention.
Finally, there can be no meaningful public oversight so long as we are kept in the dark. FISC opinions are not, by default, made public. Revelations to the press are denied. Even negotiations to upcoming bills are made behind closed doors.
The safety and well-being of Americans is paramount, and tools that help provide that safety are clearly important. But in his remarks, Wray relied on familiar scare tactics to create political leverage. Unwilling to explain Section 702 success stories, Wray instead relied on the hypothetical. He asked What If?
He conjured hypothetical mass shootings and lone gunmen. He employed the idea of a stranger taking pictures of a bridge at night; another buying suspicious supplies at a hardware store. He imagined a high schooler reporting worrying behavior of an ex-boyfriend. He invoked the specters of would-be victims.
In all these situations, Wray’s position was clear: Section 702 prevents this chaos. Do not challenge it, he begged.
“Any restriction on our ability to access the information that’s already Constitutionally collected in our databases, I just think is a really tragic and needless restriction,” Wray said. “And I beg the country not to go there again. I think we will regret it and I just am hoping that it doesn’t take another attack for people to realize that.”
The U.S. government does not publicly provide data to assert its claim that Section 702 keeps Americans safe, claiming that such disclosures would compromise intelligence gathering. This is understandable. Wray’s suggestion of “another attack” is not. It suggests fear will help steer Americans towards the right decision.
Fear drove McCarthyism. Fear drove Japanese American internment. Fear drove the Chinese Exclusion Act and it helped drive the Patriot Act. Do not let fear drive us from our rights.
Section 702 needs review, and many parts of it—including the backdoor search—do not measure up to Wray’s justifications. If the government can prove that warrantless search of American communications keeps Americans safe, why does Wray rely on hypotheticals?
If you care about ending the backdoor search loophole, call your representatives today.