Responding to the Myths About Reforming FISA’s Section 702

Image: National Security Agency headquarters, Fort Meade, Md.

As the New Year’s deadline for reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA) approaches, current and former government officials are waging a public relations campaign against bipartisan reform efforts needed to protect the rights of innocent Americans. Unfortunately, these attacks are rife with misleading statements and omissions that require correction. Here are a few of those false assertions, along with the facts:

Myth: Section 702 is fundamentally a counterterrorism program.

Predictably, proponents of unchecked surveillance authorities emphasize the surveillance of terrorist suspects. In fact, Section 702 permits the government to spy on foreigners who possess, are expected to receive or are likely to communicate “foreign intelligence information,” which has a very broad definition in law. Those who oppose reform of Section 702 want Americans believe their communications can’t be collected if they are not communicating with terrorists. They would rather Americans not stop and imagine everyone whom the government could be surveilling under these almost boundless authorities.

Myth: This debate is all about the FBI’s access to 702 data on terrorist suspects. 

Because the FBI is responsible for stopping terrorist attacks in the United States, proponents of warrantless backdoor searches have focused on the Bureau. But the CIA and NSA also conduct backdoor searches for Americans – more than five thousand searches for the content of Americans’ communications and more than 30,000 for metadata. Opponents of reform also fail to mention that the FBI’s backdoor searches, which it refuses to even count, can be conducted for evidence of a crime or for foreign intelligence unrelated to terrorism, or that the results of those searches can be used by the government for purposes that have nothing to do with national security.

Myth: Backdoor searches of 702 data are the only way to find out whether a suspect is talking to terrorists overseas.

Those who want the government to read the content of Americans’ private communications without a warrant act as if the government has no other options. That’s flat-out false – other authorities grant the government access to non-content information without a warrant. Less than three years ago, Congresspassed the USA FREEDOM Act, which prohibited bulk collection of phone records but allowed the government to obtain those records, as well as email records, as long as they are relevant to an investigation. Rather than go right to the content of Americans’ private communications, the government should use the authorities it already has to find out who suspects are talking to.

Myth: Section 702 effectively prohibits reverse targeting.

Opponents of reform of Section 702 insist that reverse targeting – conducting surveillance of a foreigner when the government is interested in the American on the phone or email – is prohibited. What they don’t say is that, if the government has any interest at all in the foreigner, they don’t call it “reverse targeting,” no matter how many times the government searches for the American or what it does with the American’s information.

Myth: The Intelligence Community has been transparent about how Section 702 is used.

The government is refusing to answer basic questions about Section 702. For years, a bipartisan group of members of Congress asked for an estimate of how many Americans’ communications have been swept up.  In a 180-degree reversal, the government recently announced there would be no estimate. The government has also refused to identify even the basic categories of individuals it is targeting under Section 702. And when I asked the director of national intelligence whether Section 702 could be used to collect communications the government knows are entirely domestic, he first testified no; then said he was answering a different question than the one I asked; and then said the whole thing was classified. When the government throws a blanket of secrecy over such a fundamental question, it is clear that the public and the Congress are operating in the dark.

Myth: Section 702 can’t be abused.

It is particularly jarring to hear former government officials and other commentators who have criticized President Trump’s assault on our democratic norms nonetheless urge that Congress grant the government vast, unchecked surveillance authorities. The President has repeatedly expressed his desire that his political enemies be investigated. An untold amount of private data on Americans derived from Section 702 is at the fingertips of FBI agents and Intelligence Community agents officers. One can simultaneously respect the professionalism of these people and be deeply concerned that a few of them will simply do what the President says. The constitutional implications of Section 702 are significant enough to require external checks, regardless of who is president. But to completely disassociate the views of the current occupant of the White House from the dangers posed by broad, unchecked surveillance authorities is to disregard the lessons of history.

Image: Trevor Paglen/Wikimedia 

About the Author(s)

Ron Wyden

United States Senator for Oregon