Congress can end warrantless spying on journalists and other Americans
Caitlin Vogus
June 15, 2023
The FBI and other intelligence agencies use Section 702 for warrantless backdoor searches on data of Americans, including journalists.
Fast on the heels of revelations that the FBI misused a controversial surveillance law that gives it access to huge amounts of Americans’ data, several senators — both Republicans and Democrats — say they’re fed up with intelligence agencies’ excuses. Congress is right to be skeptical of the law, known as Section 702 of FISA, which the FBI has used to spy on Black Lives Matter activists and others. But Congress doesn’t have to limit itself to railing against the law’s abuse. It should use Section 702’s coming expiration to make critical reforms and rein in rampant warrantless spying on Americans, including journalists.
Section 702 allows intelligence agencies to conduct “backdoor searches”: accessing the communications of Americans without a warrant, as long as they’re talking to someone outside the U.S. While Section 702 requires intelligence agencies to “target” a foreigner for intelligence collection, once Americans’ communications data is swept up in their surveillance, the agencies can search it without a warrant for any reason. As a result, despite being touted as a national security measure focused on foreigners, Section 702 has become a powerful tool for domestic spying. It’s routinely used in cases that have nothing to do with national security. The FBI has even used Section 702 data for searches targeting journalists.
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Unsurprisingly, the FBI and other intelligence agencies oppose significant changes to Section 702. Instead, the FBI recently suggested just a few weak reforms, such as a “three-strike policy” for searches that break the rules and including FISA compliance in senior officials’ performance reviews.
Suggesting that the FBI police itself is laughable in the face of the history of vast warrantless surveillance of Americans and other surveillance abuse. Self-regulation won’t work. For proof, look no further than the approximately 200,000 backdoor searches the FBI conducted in 2022. Using the FBI’s own compliance rate, even after its latest internal “reforms,” that includes more than 8,000 searches that violate its own rules.
Instead, Congress should adopt the reforms recommended by a coalition of more than 20 privacy, civil rights and civil liberties organizations, including Freedom of the Press Foundation. It must close the backdoor searches loophole by requiring the government to get a warrant before it can search the massive Section 702 data trove for Americans’ communications. It also must narrow Section 702’s parameters to target genuine national security needs. Separate from Section 702 reform, passing the PRESS Act would also help protect journalists from surveillance of their electronic communications data.
In addition, Congress should increase transparency of surveillance activities under Section 702 and another surveillance authority, Executive Order 12333. These surveillance schemes operate as a black box, with little information available to the public, lawmakers and courts. Even the court opinion revealing the FBI’s abuse of Section 702 to monitor BLM activists didn’t come out for more than a year after the opinion was issued, despite a law requiring it to be made public.
Such lack of transparency makes news reporting about surveillance abuses particularly difficult, and journalists must often rely on information revealed by whistleblowers to inform the public. The secrecy allows problems like overclassification and faulty legal interpretations of surveillance authority to run rampant, and surveillance abuses to continue, with little oversight or accountability.
Without changes to Section 702 and other surveillance authorities, intelligence agencies will continue to abuse their power to spy on Americans. For too long, these agencies have been permitted to surveil journalists, activists, politicians and anyone else they consider suspect. Congress should put an end to that by only agreeing to reauthorize Section 702 with these essential changes.