A few months ahead of its expiration this fall, the Biden administration has announced its intention to seek renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA)—an invasive and unconstitutional law that cannot continue to exist in its current form.
On its face, Section 702 allows the government to conduct surveillance inside the United States so long as the surveillance is directed at foreigners currently located outside the United States. It also prohibits intentionally targeting Americans. Nevertheless, the NSA routinely (“incidentally”) acquires innocent Americans' communications without a probable cause warrant. In fact, FISA Court judges who approve Section 702 surveillance never learn about, let alone approve, the targets of surveillance under Section 702, and they rely entirely on certifications from the executive branch that downplay the nature of incidental surveillance of Americans. Then, rather than “minimize” the sharing and retention of Americans’ data, as Congress required, the NSA routinely shares such data with the FBI, CIA, and National Counterterrorism Center, and all agencies retain it for at least five years. Since Section 702 was last reauthorized in 2018, it has only become clearer that this provision is a rich source of warrantless government access to Americans’ phone calls, texts, and emails.
In this way, Section 702’s mass surveillance of Americans and the availability of that information to law enforcement isn’t just “incidental”—it's the primary function of the program. What should we do about a program where the byproduct of the program becomes the primary benefit to the government?
As early as 2011, the FISA Court held that the NSA's collection of Internet communications violated the Fourth Amendment because, despite targeting foreign communications, the agency was still collecting approximately 56,000 American emails a year. And yet, this collection continued. In 2021 alone, the FBI conducted up to 3.4 million warrantless searches of Section 702 data to find Americans’ communications. Congress and the FISA Court have imposed modest limitations on these “backdoor searches,” but according to several recent FISA Court opinions, the FBI has engaged in “widespread violations” of even these minimal privacy protections.
In addition to stopping the unconstitutional surveillance, Section 702 also needs new measures of transparency to enable future audits and accountability of these secretive programs. FISA has long contained procedures for private parties to sue over surveillance that violates their rights, including a mechanism for considering classified evidence while preserving national security. But, in lawsuit after lawsuit, the executive branch has sought to avoid these procedures, and the judiciary, including the Supreme Court, has adopted cramped readings of the law that create a de facto national security exception to the Constitution.
EFF is far from alone in this fight to reform Section 702. Not only are we joined by a large number of civil liberties and civil rights groups, even members of the Executive Branch’s Privacy and Civil Liberties Oversight Board (PCLOB) have announced that this program should not continue as is. PCLOB member Travis LeBlanc said at a conference, “Given what I have seen and what I know, I do have several concerns about a clean reauthorization without significant, common-sense reforms to safeguard privacy and civil liberties.”
Section 702 has become something Congress never intended: a domestic spying tool. Congress should consider ending the program entirely, but certainly not reauthorize Section 702 without critical reforms, including true accountability and oversight.