National Security over Individual Privacy: A Look at Section 702 of FISA and Proposed SAFE Act Reforms
In late February of this year, the Biden administration confirmed it would move to extend the warrantless search program authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire in April 2024.[1]
Section 702, which passed into law at the tail-end of the Bush Administration in 2008, authorizes the United States federal government to “conduct targeted surveillance of foreign persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information.”[2] The law, and the program for which it provides, has historically been controversial: although it was originally intended to allow the government to more easily monitor foreign terrorists in the years following the 9/11 terrorist attacks, the government has abused it to illegally spy on Americans.[3] The law broadly allows warrantless collection of non-Americans’ communications in foreign countries.[4] Through its collection practices, the U.S. government also receives the private communications of Americans incidental to the authorized communications; there are no safeguards to prevent the government from looking at or using this data.[5] U.S. intelligence agencies searched the communications of over 200,000 American citizens between December 2021 and November 2022 without warrants because the information was pulled under the authority of Section 702.[6] It also appears that the government does not search these communications under a legally permitted exemptions, such as reasonably believing they are likely to uncover foreign intelligence or evidence of a crime; rather, government intelligence agencies have “performed baseless backdoor searches for the private communications of racial justice protesters, members of Congress, journalists, crime victims, and political donors,” among others.[7] In fact, during the Trump administration, a FOIA lawsuit brought by the ACLU revealed that the FBI “improperly used Section 702 to spy on Black Lives Matter activists protesting George Floyd’s murder at the hand of police,” and later the government used the law to surveil individuals suspected in the January 6th insurrection at the Capitol.[8]
Despite the apparent misuse of the law, the Biden administration indicated that it intends to further the Section 702 surveillance program through April 2025, adding another year to its life.[9] By law, the executive branch is required to ask the Foreign Intelligence Surveillance Court to renew the program’s certifications at least one month before the certifications lapse, though the full year for which the government intends to ask is not mandated (it could request a shorter extension); at the time of this writing, it is unclear whether that step has been taken.[10]
The issues surrounding Section 702 are bipartisan in nature.[11] On March 14, 2024, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Mike Lee (R-UT) introduced a bill together entitled the Security and Freedom Enhancement (SAFE) Act as an intended compromise to both reauthorize Section 702 of FISA and enact meaningful safeguards to protect Americans’ privacy.[12] The bill would require US intelligence agencies to “obtain a FISA Title I order or a warrant before accessing the contents of Americans’ communications collected under Section 702,” though it does not prevent them from running preliminary queries that collect Americans’ data.[13] This is a notable change that would curb the government’s unchecked use of the information it collects; in theory, this would help steer Section 702 towards its intended use—surveilling potential national security threats to the U.S.—rather than using it for domestic criminal investigations.[14].
The SAFE Act also addresses data brokers, which sell private user data to the government, among other private clients.[15] The bill would prevent the government from purchasing data that would otherwise require a warrant to collect.[16] It would be a large step in the right direction, and could even open the door to future legislation regarding data brokers and the market for personal information.
However, the bill would not allow for individuals harmed by the unauthorized use of their information under Section 702 to seek relief in court and would further steepen the criminal penalties for whistleblowers who disclose information about governmental use of Section 702 without authorization.[17] Some doubt how much the SAFE Act could curtail Section 702.[18]
If Section 702 is reauthorized for another year, a bill such as the SAFE Act is a better solution than nothing at all to tackle the government’s exploitation of its surveillance capacity because of its warrant requirement. Even with its shortcomings, it is a step in the right direction. Should the law pass, it would give hope that lawmakers will strengthen privacy protections for individual Americans, especially as the issue blurs party lines. For now, however, Americans must wait with bated breath to see whether Section 702 is extended, and whether the SAFE Act is passed to mitigate its subversive effects.
Footnotes
