Intelligence Bosses Circle the Wagons in Bid To Secure Reauthorization of Foreign Surveillance Authority

‘It doesn’t matter whether you think you have nothing to hide,’ one analyst tells the Sun.

AP/Mariam Zuhaib
Senator Warner, a Virginia Democrat, center right, during a news conference March 7, 2023, on Capitol Hill. AP/Mariam Zuhaib

At the end of this year, a sweeping intelligence law will be up for renewal, pitting the fringes of both parties against the establishment in a battle over the privacy of every American.

The Foreign Intelligence Surveillance Act’s Section 702 will be up for renewal. Proponents say it is a critical tool for use by law enforcement overseas, but its critics call it a violation of the Fourth Amendment prohibiting unreasonable search and seizure.

Last week, FISA Section 702 made headlines for its role in empowering the FBI to search through communication data for information on both January 6 participants and George Floyd protesters.

The Foreign Intelligence Surveillance Court, a tribunal of district court riders appointed by Chief Justice Roberts, is responsible for reviewing Department of Justice applications for surveillance and writes its own opinions on the subject.

In an opinion released last week, the FISA Court said the FBI searched foreign intelligence databases more than a dozen times looking for potential foreign influence in the January 6, 2021, attack on the Capitol. The bureau also searched for information related to 133 people arrested during the 2020 protests following the murder of George Floyd.

According to the opinion, these searches, as well as numerous others into everything from congressional campaign donors to people whose names appeared in murder reports, were conducted on Americans — often without warrants — and using Section 702, which is supposed to only authorize surveillance of foreign communications.

Section 702, first passed in 2008, “permits the government to conduct targeted surveillance of foreign persons located outside the United States,” according to the director of national intelligence.

The provision broadly allows law enforcement to collect information on communications concerning foreign nationals, and though intelligence officials maintain that it doesn’t allow law enforcement to target American citizens, critics disagree.

A senior fellow at the libertarian Cato Institute, Patrick Eddington, tells the Sun: “If you’re an average American and you’re wondering why you should care, it’s really easy.

“It doesn’t matter whether you think you have nothing to hide,” Mr. Eddington says. “If you’ve been in communication with an alleged bad actor — even someone you may not know is a bad actor — you are now of interest to the U.S. intelligence or law enforcement.”

Choosing to not reauthorize the section, Mr. Eddington says, or heavy modification of Section 702 is the first step in clawing back rights to privacy that have been eroded since 9/11.

A policy counsel at the group Demand Progress, Sean Vitka, tells the Sun that, practically speaking, Section 702 empowers the government to collect “billions of communications sent internationally without a warrant.”

The Demand Progress Education Fund, a liberal activist organization, has detailed numerous violations of the supposed restrictions that Section 702 puts on searching through this data, and claims that the FBI alone has run more than 3.4 million queries of the data concerning Americans.

“Congress needs to enact warrant requirements and fix the backdoor loophole and fix the abuses that we’ve seen relating to racial profiling and political surveillance,” Mr. Vitka tells the Sun. “This is without a doubt the biggest opportunity to protect Americans’ privacy in generations.”

Members of both parties have historically supported Section 702, which has been described as a legislative descendent of President Bush’s Stellar Wind, a program launched after 9/11 to collect information on international communications.

House Democrats last approved reauthorization in the House under Speaker Pelosi in January 2018, and the Republican-led Senate followed suit shortly thereafter. President Trump initially opposed its renewal, claiming President Obama used it to spy on his campaign, but later changed his tune, tweeting, “We need it! Get Smart!”

President Biden is advocating for Section 702’s renewal, and the director of central intelligence, Bill Burns, went to bat for it during a hearing in March, arguing that the provision has been “crucial” in unearthing networks used by drug cartels.

“702 has been crucial in illuminating that network for us and, therefore, enabling us, for example, just in the last few months, to work with Mexican partners to take some very successful actions against the Sinaloa Cartel,” Mr. Burns said.

According to Mr. Vitka, regardless of what Mr. Biden might want in terms of a clean reauthorization, the current Congress is probably the most critical of Section 702 that’s been elected since its passage.

On the Republican side, Representatives Jim Jordan and Andy Biggs, key players in the Freedom Caucus, are critical of the legislation, and they wield significant influence on much of the Republican conference.

On the Democratic side, Minority Leader Hakeem Jeffries opposed the renewal of Section 702 in 2018. Representative Jerry Nadler has also called for reforms to the legislation.

The objection on both sides of the aisle is that the section has “morphed into a domestic spying tool for the FBI,” in the words of the deputy project director for the National Security Project at the ACLU, Patrick Toomey.

“The government claims to be targeting people overseas, but it is clearer than ever that agents are using this surveillance as a backdoor into Americans’ private emails and messages,” Mr. Toomey told Cyberscoop earlier this year.

Mr. Eddington says a new legislative charter for the FBI would close some of those surveillance backdoors. “They need to be expressly prohibited from investigating civil society groups participating in First Amendment-protected activities unless they have probable cause to suspect there is something going on,” he says.

Members of both the House and the Senate intelligence committees appear to understand that Congress isn’t prepared to reauthorize Section 702 without any sort of adjustments, though they haven’t proposed any specific changes yet.

The chairman of the Senate Intelligence Committee, Senator Warner, tells the Sun that he’s pushing for reauthorization but understands it won’t be as simple as renewing it as it exists.

“I continue to support reauthorization of the law, and the committee and other members will take a hard look at the law to understand if additional reforms are necessary to improve compliance and ensure protection of the privacy and civil liberties of Americans,” Mr. Warner said.

The New York Sun

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