Lawmakers Demand End to FBI’s Warrantless FISA Searches

Lawmakers Demand End to FBI's Warrantless FISA Searches

A rare bipartisan coalition of lawmakers has teamed up to propose major privacy reforms that could fundamentally reign in the US government’s most powerful domestic surveillance tools.

If passed, the newly proposed Government Surveillance Reform Act (GSRA) would force law enforcement agencies to obtain a legal warrant before conducting searches as part of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Critics say the current lack of a warrant requirement for accessing the 702 database serves as an unconstitutional end-run around Americans’ Fourth Amendment protections. The proposed legislation comes towards the tail end of a tense, year-long battle over the future of highly controversial surveillance, which is set to expire on December 31.

“The Clock is ticking on 702,” Republican Utah Senator and bill co-sponsor Mike Lee said during a press conference Tuesday. “It’s time for a trade. We will vote to reauthorize but only with rules that make Uncle Sam get a warrant before entering our digital domains.”

Section 702, enacted back in 2008, was initially sold as a foreign surveillance tool used to target terrorists. But outdated and under-developed language in the policy has granted intelligence agents and law enforcement with a sneaky back door to harvest vast troves of US communications. Those private communications are then regularly surveilled without a warrant and, in some cases, used to prosecute people in criminal court. The result is a gaping policy loophole that affords law enforcement the ability to collect personal communications from American citizens that would normally be protected under the Fourth Amendment.

Above all else, the GSRA reforms suggested in the extensive 206-page bill are intended to update and modernize US surveillance tools to ensure privacy protections and fundamental rights are keeping pace with technological advances that make data procurement much easier. The bill’s lead authors said the upcoming deadline to reauthorize 702 marks a “once-in-a-generation opportunity” to strengthen privacy protections and regain control of a surveillance system that’s shifted far in favor of intelligence agencies in recent years.

“It [the GSRA] will end the litany of abuse of FISA 702 we’ve seen year after year and close serious loopholes, all while preserving the operational value needed for national security,” Center for Democracy & Technology Security and Surveillance Project Deputy Director Jake Laperruque said in an emailed statement. “The only path forward for FISA 702 is with significant reforms, and the GSRA accomplishes this critical goal.”

Lawmakers Demand Warrant Requirement for US Data

Lawmakers from both parties and both chambers of Congress attached their names to landmark legislation. Aside from banning warrantless queries of the Section 702 database for Americans’ communications, Oregon Senator and lead author Ron Wyden said the bill would also prohibit law enforcement agencies from purchasing sensitive data from “shady, unregulated data brokers.” Federal agencies like Immigration and Customs Enforcement have increasingly used data procured from data brokers in recent years to skirt privacy protections. Seven senators and 11 members of the House of Representatives from both parties co-signed what they called “common sense” legislation.

“Americans know that it is possible to confront our country’s adversaries ferociously without throwing our constitutional rights in the trash can,” Wyden said. “But for too long surveillance laws have not kept up with changing times.”

If passed, the bill would reauthorize Section 702 for four more years with the added reforms. Those reforms would put in place new measures to ensure foreigners are not targeted by intelligence agencies as a pretext for spying on US citizens and require warrants for the surveillance of Americans’ location data, web browsing history, and web search entries. It would even require warrants for obtaining communications with AI assistants like Amazon’s Alexa and Apple’s Siri.

Crucially, the bill also includes provisions that give targets of FISA surveillance the opportunity to challenge the case before a court if they reasonably believe that their rights have been targeted. Multiple courts have interpreted the current state of the tool in ways that have denied victims from seeking recourse. Another provision would clarify that the government is required to disclose to people if 702 was used to collect data that will be used against them in criminal proceedings. That disclosure requirement is woefully missing in 702’s current form. The EFF estimates the government has only provided notice to eleven criminal defendants since 702 was enacted 15 years ago.

The bill was endorsed by dozens of leading rights organizations including the American Civil Liberties Union, Americans for Prosperity, the Center for Democracy & Technology, and the Electronic Frontier Foundation.

“We have said again and again that Section 702 should not be reauthorized absent fundamental reforms,” ACLU Senior Policy Counsel Kia Hamadanchy said in a statement. “The Government Surveillance Reform Act meets this high standard. This legislation would address the countless abuses of Section 702 we have seen from the government, and it would ensure the protection of Americans’ Fourth Amendment rights.

“This is the most significant opportunity for protecting Americans from warrantless government surveillance in generations, and the GSRA rises to the challenge,” Demand Progress Policy Director, Sean Vitka added. “Section 702 must not be reauthorized without the critical, comprehensive privacy protections in this bill.”

Wait, What is FISA 702 Again?

Section 702 of the Foreign Intelligence Intelligence Surveillance Act (FISA) refers to a 2008 provision added to the landmark 1978 FISA legislation. First passed during the Carter Administration, FISA was intended to serve as a bulwark against unauthorized domestic spying on US citizens by intelligence agencies like the NSA and CIA. Section 702, passed during the height of the United States’ worsening wars in Iraq and Afghanistan, expanded FISA’s remit by authorizing the collection and dissemination of communications of non-US citizens located outside the country.

Though 702 was intended to monitor foreign terrorism suspects, civil liberties groups say intelligence agencies “routinely” use it as a legal loophole to suck up US citizens’ private communications. Importantly, Section 702 compels US tech companies like Google and Meta and telecommunication giants to hand over communications of government surveillance targets, even if those communications are of US citizens. That means a US citizen who, for whatever reason, may have communicated with a suspected terrorism subject, could have their communications stored on a massive Section 702 database. The National Security Agency, whose domestic spying practices were the subject of Edward Snowden’s massive whistleblower leaks in 2014, refers to this sucking up of US communications as “incidental collection.”

Law enforcement can then tap into that 702 database and access US communications without a warrant. Critics say that loophole leads to a disturbing, and legally dubious end run around US citizens’ Fourth Amendment protections. The exact scale of those potential abuses remains unknown. Law enforcement agencies like the FBI have consistently refused to provide estimates of the total amount of US communications sucked up in the 702 database. Doing so with mathematical certainty, the agency reportedly claims, would be “infeasible.”

“Section 702 has become something Congress never intended: a domestic spying tool,” The Electronic Frontier Foundation wrote in a brief earlier this year.

Why Would a Warrant Requirement Matter?

Civil liberties groups like the ACLU and EFF, among many others, have long argued the warrantless, “backdoor searches” carried out using Section 702 amount to clear violations of the Fourth Amendment. This loophole around obtaining a warrant to access the communications of American citizens, some argue, makes Section 702 the equivalent of an unconstitutional domestic spying tool. Supporters of warrant reforms believe the requirement would go a long way in solving 702’s most egregious overreaches. Traditionally, that view was mostly held by members of the political left during the 2000s but has more recently earned the favor of a growing number of right-wing Republicans who are convinced the FBI played loose with FISA requirements to target former Trump campaign associate Carter Page.

Lawmakers and advocates pushing for warrant requirements received a crucial nod of approval in September following the release of a highly anticipated report from the independent Privacy and Civil Liberties Oversight Board (PCLOB). The board—which was established to advise the president on anti-terrorism policies that could run up against personal privacy—reviewed 702 and found little justification for an estimated five million warrantless, backdoor searches the FBI conducted on Americans between 2019 and 2022.

A majority of the PCLOB recommended putting in place reforms requiring government agencies like the FBI first seek judicial approval (i.e. A warrant) before tapping into the 702 database to search for data on Americans. The PCLOB also recommended an end to so-called “about” data collections, which would let law enforcement look at communications between two individuals in the 702 databases who weren’t the subject of investigation, merely because they were believed to speak about said case. Rights groups applauded the recommendations.

“Congress has the power to safeguard the constitutional rights of Americans by fundamentally reforming this invasive and unconstitutional mass surveillance program,” ACLU Senior Policy Counsel Kia Hamadanchy, said in a statement. “As the Board rightly points out, requiring the government to obtain individualized judicial approval is critical to ensuring that Section 702 cannot be used by the FBI, NSA, and CIA to quietly circumvent Americans’ constitutional rights.”

But the reform bill dosent’s stop with 702. Instead, it proposes various new safeguards aimed at reigning often creative ways law enforcement and intelligence agencies attempt to access private information without warrants. If passed, the bill would restore constitutional protection that the lawmakers say has been “undermined by modern collection methods.” Specifically, the bill would make it clear law enforcement must obtain a warrant before surveilling and collecting web browsing history and data. The warrant would also extend to law enforcement attempting to pay a data broker to collect that data at their behest.

Why Intelligence Agencies Don’t Want Them?

Intelligence agencies like the NSA and FBI, naturally, aren’t exactly thrilled about losing their secret weapons. High-level spooks and top brass from the nation’s leading three-letter name agencies testified before Congress earlier this year making their case for reauthorizing the 702 with minimal changes in the name of national security. The federal agents cited multiple examples of foiled terrorism attacks and drug trafficking operations they assured were made possible by intelligence gleaned from American data housed on Section 702 databases. Agents often involved the specter of the September 11 terrorism attacks in New York and the Pentagon to buttress their case.

“FISA 702 keeps us agile and efficient, and it is absolutely critical for the FBI to continue protecting the American people—not just from cyberattacks but also from terrorist attacks, foreign spies, and a host of other hostile threats,” FBI Director Paul Abbate testified during the hearing.

DOJ National Security Division Assistant Attorney General Matt Olsen, enflaming fears of a potential repeat 9/11 disaster, echoed those concerns.

“The stakes cannot be higher,” Olsen said.

But lawmakers supporting the reforms pushed back against those scare tactics on Tuesday and said security and privacy protection are not mutually exclusive. They believe the compromise bill still provides intelligence agencies ample tools to conduct investigations while adding deeply needed accountability and transparency.

“For decades, our intelligence agencies have offered us a false choice: either keep our country safe or protect Americans’ constitutional right to privacy,” California representative Sara Jacob Said in a statement. “But we can and must do both.”

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