US Surveillance of Americans Must End

When Edward Snowden revealed that the National Security Agency (NSA) had abused foreign intelligence surveillance laws to collect phone records of millions of Americans, the resulting public outcry eventually led Congress to ban this practice. How would Americans and their lawmakers react if they learned that the government was abusing these powers to access the actual contents of millions of American communications, without a warrant or even a factual basis to suspect criminal activity?

According to a recent government report, that is exactly what is happening. The Office of the Director of National Intelligence recently revealed that in 2021, the FBI conducted up to 3.4 million warrantless searches for American phone calls, emails and text messages using a law which, on paper, can only be used to spy on foreigners abroad.

The law in question, Section 702 of the Foreign Intelligence Surveillance Act, was one of several laws passed by Congress after 9/11 to expand the government’s surveillance powers. This allows the NSA to target any foreigner abroad and collect all of their communications, as long as one of the agency’s goals is to acquire foreign intelligence. No warrant is required because foreigners abroad are not protected by the Fourth Amendment.

Of course, foreigners often communicate with Americans, and so surveillance had to largely sweep away what Americans think, say, and write. If the government’s objective was to access this information, it would have to obtain a warrant. Congress therefore included two provisions in the law to help strengthen its constitutionality. First, Congress asked the government to certify that it had no intention of targeting Americans, that is, any acquisition of American communications would be incidental. Second, Congress has called on the government to minimize the sharing, use, and retention of this incidentally acquired information.

But over the years, those requirements have done little to protect Americans from warrantless searches. Information about the operation of Section 702 can be gleaned from official disclosures, court opinions, and a 2014 report by the Privacy and Civil Liberties Watchdog, an independent government watchdog. These sources show that, rather than minimizing the sharing and retention of US communications, the NSA routinely shares raw Section 702 data with the FBI, CIA, and National Counterterrorism Center, and these agencies retain this data for at least five years.

In addition, each agency engages in the practice of researching data acquired under Section 702 for US communications. The FBI routinely conducts such research into purely domestic cases that have nothing to do with foreign intelligence, often at the assessment stage, i.e. before the FBI even has a factual basis. to open a criminal investigation.

In other words, after obtaining the warrantless communications by certifying that it does not intend to target Americans, it is government policy to conduct research that explicitly targets Americans.

This bait and switch itself is not news. What the DNI report reveals is how often these backdoor searches occur: 3.4 million times in 2021 alone. The report notes that the figure likely overstates the number of Americans affected, by partly because there could be multiple searches for a single individual. But even if the figure is off by an order of magnitude, it still means that every day nearly a thousand Americans are subjected to a warrantless search of their personal communications.

No wonder the FBI resisted producing this number for so many years. This staggering figure, even with all the caveats from the government, makes it clear that there is nothing incidental about Section 702’s impact on Americans. Warrantless access to US communications has become an essential feature of a surveillance program that claims to be solely foreign-focused.

Certainly, the Foreign Intelligence Surveillance Court, which oversees governments’ use of foreign intelligence surveillance authorities, has blessed this practice. But the same court also approved the mass collection of US phone records by the NSA. That didn’t stop three regular federal courts from declaring the practice illegal. It also didn’t stop Congress from banning it.

The most recent report, however, did not generate the same public outcry as Snowden’s revelations. Indeed, media coverage of the report has largely missed the significance of this disclosure. This could be because the backdoor search scandal, unlike the Snowden revelations, happened in stages and through muted official disclosures, rather than a spectacular leak all at once. It could also stem from the relative complexity of the law and how it works.

But we must not let form obscure substance: the government is conducting warrantless research into the most sensitive information we generate in our private communications on a dizzying scale. On the contrary, it is an even greater intrusion into the privacy of Americans than the mass collection of NSA phone records.

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Congress must once again act to stop the government from using foreign intelligence surveillance authorities to end Americans’ constitutional rights. Section 702 is to be reauthorized next year. When this is the case, Congress should require government officials to obtain a warrant whenever they wish to search for data acquired under Section 702 for US communications.

Such a measure passed the House twice but failed to become law. The government’s report should clear any doubts about its necessity. Enacting this sensible solution will leave the government with sufficient authority to collect information on foreign actors, while preserving vital Fourth Amendment safeguards for Americans.

Elizabeth Goitein is Co-Director of the Freedom and National Security Program at NYU Law’s Brennan Center for Justice.

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