Call Your Senator and Tell them to Remove FISA 702 from the NDAA

On Nov. 16, HPSCI released a report calling for reauthorization of Section 702 with essentially superficial reforms. The bill that followed, H.R. 6611, was as bad as expected. It would renew the mass surveillance authority Section 702 for another eight years. It would create new authorities that the intelligence community has sought for years, but that have been denied by the courts. It would continue the indiscriminate collection of U.S. persons’ communications when they talk with people abroad for use by domestic law enforcement. This was not the intention of this national security program, and people on U.S. soil should not have their communications collected without a warrant because of a loophole.

As a reminder, Section 702 was designed to allow the government to warrantlessly surveil non-U.S. citizens abroad for foreign intelligence purposes. Increasingly, it’s this U.S. side of digital conversations that domestic law enforcement agencies trawl through—all without a warrant. FBI agents have been using the Section 702 databases to conduct millions of invasive searches for Americans’ communications, including those of protesters, 19,000 donors to a congressional campaign, journalists, and even members of Congress. 

Additionally, the HPSCI bill authorizes the use of this unaccountable and out-of-control mass surveillance program as a new way of spying on Americans by sifting through their digital communications. According to a newly released Foreign Intelligence Surveillance Court opinion, the government has sought some version of this authority for years, but was repeatedly denied it, only receiving court approval for the first time this year. Because the court opinion is so heavily redacted, it is impossible to know the current scope of immigration- and visa-related querying, or what broader proposal the intelligence agencies originally sought.

The controversy centers around the FBI's utilization of the Foreign Intelligence Surveillance Act (FISA) Section 702, a discovery that has sparked outrage since findings surfaced about extensive surveillance on hundreds of thousands of American citizens.

Originally intended for federal surveillance of communications involving foreign residents within the US, FISA Section 702 has undergone considerable expansion.

The FBI reportedly abused this authority by engaging in warrantless surveillance to gather information on individuals connected to significant events, including spying on Trumps presidential campaign, the 2020 George Floyd protests and January 6, 2021, the alleged Capitol attack.

A recently declassified court ruling disclosed that FBI analysts improperly accessed the warrantless surveillance program on multiple occasions, leading to searches for information on Americans involved in civil unrest.

The Foreign Intelligence Surveillance Court has, on four separate occasions, found improper handling or access to Americans' communications. On three occasions, the court indicated that these actions violated the Fourth Amendment.

Senator Lee, in a stern rebuke to Wray in a congressional hearing, emphasized, "It's never different. You haven't changed, and you keep referring to these policies, these new procedures. We haven't seen that. We're not even allowed to have access to it, and we have absolutely no reason to trust you because you haven't behaved in a manner that's trustworthy."

During the hearing, Director Wray admitted that the FBI had ignored the requirement to obtain court orders for monitoring Americans, despite legal obligations in certain circumstances.

The Office of the Director of National Intelligence (ODNI) declassified FISA Court opinions in 2021, revealing a pattern of unauthorized monitoring of American citizens by the FBI.