Reform can’t wait for U.S. program used to spy on journalists and others

Caitlin Vogus Headshot

Deputy Director of Advocacy

A person holds a laptop displaying email, with his hand resting on the keyboard, as three other people look on.

You’ve got mail — and the government may have it, too. A spying program has allowed U.S. intelligence agencies to conduct hundreds of thousands of warrantless searches of Americans’ emails and other communications, including of journalists. ​​Man checking his email on a laptop by Rawpixel Ltd is licensed under CC BY 2.0.

Apparently, it’s not just canned food that stays good after its expiration date. Section 702 of the Foreign Intelligence Surveillance Act, the controversial U.S. spying program, soon may have its shelf life extended too, as the government tries to cling to its surveillance powers.

Section 702 is set to expire on April 19, 2024, unless Congress reauthorizes it. But last week, news broke that the Biden administration is seeking court approval to extend it for another year. A quirk in the law would allow the Foreign Intelligence Surveillance Court, or FISC, to issue a new certification allowing the program to continue to operate until April 2025, even if Congress doesn’t reauthorize it by the April 19 deadline.

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At the same time, there are rumblings that Congress could include Section 702 reauthorization in one of the must-pass funding bills it's currently considering to keep the government open. More than 90 organizations, including Freedom of the Press Foundation (FPF), oppose that approach, which would cut off necessary debate on reforms to the law.

These procedural moves matter because they undermine attempts to reform Section 702, which civil rights and civil liberties advocates have long decried for allowing the FBI and other intelligence agencies to evade the Fourth Amendment and spy on Americans. Extending certification for another year or reauthorizing Section 702 in must-pass funding bills would short-circuit the current push in Congress to reauthorize the surveillance law only if there are significant changes that would rein in these abuses.

Our privacy is too important to leave Section 702 to a legal loophole or perfunctory rubber stamp in Congress. Instead, Congress should use the two good FISA reform bills it has on the table — the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act — to enact lasting reform that will protect Americans from warrantless government spying.

Backdoor searches enable warrantless spying

Section 702 is supposed to target the electronic communications of foreigners for intelligence gathering, not that of Americans. But inevitably, it collects those of U.S. persons as well. Once that data is collected, the FBI and other intelligence agencies can search it, accessing our phone calls, emails, and text messages, all without a warrant.

They’re known as “backdoor searches,” and they’re pervasive. In 2022 alone, the FBI conducted 200,000. Government assessments have revealed specific backdoor searches involving U.S. persons conducted by FBI agents, including searches using identifiers of journalists and political commentators.

FPF and other members of the FISA Reform Coalition want Congress to put a stop to this warrantless surveillance of Americans. A bipartisan group of senators and representatives agree. The Government Surveillance Reform Act in the Senate and the Protect Liberty and End Warrantless Surveillance Act in the House would end backdoor searches and make other important reforms to FISA.

FISA reform deserves full attention of Congress

When he was a senator, Joe Biden also supported Section 702 reform. But as president, he has changed his tune, defending the law and seeking its reauthorization without significant changes. Now, his administration is trying to sneak through another year of surveillance without congressional approval using the FISC certification process, as Elizabeth Goitein of the Brennan Center for Justice has pointed out.

But even if the Biden administration has legitimate concerns that the law’s April 19 expiration creates a lapse in its surveillance authority, there’s no need to seek recertification from the FISC for a full year. A shorter extension would still prevent any gap in Section 702 authority while giving Congress the chance to enact the reforms it's been actively debating.

But perhaps the administration is counting on recertification to take the wind out of the sails of the reform movement underway in Congress. Without the looming deadline of FISA’s lapse, Congress may be tempted to kick the can down the road and push off the difficult job of fixing FISA to the next legislative session, where members may be less reform-minded.

That would be a mistake. So, too, would be taking the opposite approach and rushing Section 702 reauthorization by shoving it into a must-pass funding bill, without the chance for any debate or amendments intended to reform the law. Congress already extended Section 702 once by including it in last year’s National Defense Authorization Act. Doing so again would be capitulating to members of Congress who want to stymie any real reforms to FISA.

For too long, the government has abused Section 702 to spy on Americans, including journalists. It’s time for Congress to give the law its full and undivided attention and to pass real reforms that will protect our fundamental civil liberties and civil rights.

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