The Biden Administration has petitioned the courts to extend warrantless surveillance for another year, sidestepping the need for a Congressional agreement before Section 702 of FISA expires in mid-April 2024. The move (depending on your view) is seen either as a strategic workaround to avoid reforming the controversial law or as a shrewd maneuver to secure a timely extension.
The Department of Justice move, reported by The New York Times, could avoid seeing Section 702 lapse but it could also upend a thorny Congressional debate about 702’s fate. US Senator Ron Wyden (D-OR) called the decision to involve the courts ‘utterly ridiculous' in a statement. "Rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all."
FISA Section 702 came into force after 9/11 to allow the US government to monitor foreign terrorists but it also allows authorities to collect communications of non-Americans abroad without a court warrant through the back door - intel such as private phone calls, emails, and text messages sent by Americans - which has led to privacy concerns.
The FBI conducted 200,000 of these “backdoor searches” in 2022 alone. Declassified documents have unveiled some of those searches targeted racial justice protesters and members of Congress.
Some lawmakers want substantial reforms before they reauthorize 702, but surveillance hawks want the status quo and even to expand powers. The Electronic Freedom Forum has called a proposed Intelligence Committee Reform bill a ‘farce’ whereas the FBI supremo Christopher Wray told lawmakers the Bureau needs 702 to combat, among other targets, Chinese hackers: "702 is the greatest tool the FBI has to combat PRC hacking groups."
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The Biden Administration has petitioned the courts to extend warrantless surveillance for another year, sidestepping the need for a Congressional agreement before Section 702 of FISA expires in mid-April 2024. The move (depending on your view) is seen either as a strategic workaround to avoid reforming the controversial law or as a shrewd maneuver to secure a timely extension.
The Department of Justice move, reported by The New York Times, could avoid seeing Section 702 lapse but it could also upend a thorny Congressional debate about 702’s fate. US Senator Ron Wyden (D-OR) called the decision to involve the courts ‘utterly ridiculous' in a statement. "Rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all."
FISA Section 702 came into force after 9/11 to allow the US government to monitor foreign terrorists but it also allows authorities to collect communications of non-Americans abroad without a court warrant through the back door - intel such as private phone calls, emails, and text messages sent by Americans - which has led to privacy concerns.
The FBI conducted 200,000 of these “backdoor searches” in 2022 alone. Declassified documents have unveiled some of those searches targeted racial justice protesters and members of Congress.
Some lawmakers want substantial reforms before they reauthorize 702, but surveillance hawks want the status quo and even to expand powers. The Electronic Freedom Forum has called a proposed Intelligence Committee Reform bill a ‘farce’ whereas the FBI supremo Christopher Wray told lawmakers the Bureau needs 702 to combat, among other targets, Chinese hackers: "702 is the greatest tool the FBI has to combat PRC hacking groups."
Four bills have been introduced in Congress to reauthorize Section 702, but only two would help prevent future abuses:
1) The Government Surveillance Reform Act of 2023 is the most comprehensive reform bill; it would require the US government to obtain a warrant before performing backdoor searches of communications content, with some exceptions. It would provide similar protections for information acquired without a warrant under Executive Order 12333, which generally governs foreign intelligence surveillance conducted outside of the US.
2) The Protect Liberty and End Warrantless Surveillance Act (Protect Liberty Act) is considered a compromise bill; it would require a warrant for backdoor searches of communications content, with the same exceptions contained in the Government Surveillance Reform Act. It closes the data broker loophole and boosts oversight by the FISA court. It does not regulate surveillance performed under EO 12333, the use of stingrays, or the collection of car data.
3 & 4) The leadership of the House and Senate intelligence committees have also introduced two separate Section 702 reauthorizationbills - both confusingly named the FISA Reform and Reauthorization Act of 2023. Both claim to make meaningful improvements to Section 702, prohibiting backdoor searches conducted solely for the purpose of uncovering evidence of a crime. Only two of the 200,000 searches conducted in 2022 were solely for uncovering evidence of a crime, however, so the change would not prevent what the Brennan Center calls ‘the worst abuses’ of Section 702, including searching political donors and politicians.
Critics of the intelligence committees’ two bills say they would actually expand warrantless surveillance by rewriting Section 702’s definition of “electronic communication service provider,” expanding the number of people and entities required to assist the US government in conducting surveillance. For example, a hotel or library that provides WiFi to customers could be forced to give the National Security Agency (NSA) access to routers.
The American Civil Liberties Union describes the proposal as “the largest expansion of domestic government surveillance since the Patriot Act”.
Why Didn’t Section 702 Expire in 2023?
Section 702 was originally set to expire on December 31, 2023, but congressional leadership inserted an extension of Section 702 into the National Defense Authorization Act, extending Section 702 until April 19, 2024. Intelligence agencies could go to the FISA court in early April and get a new certification - one that would allow the surveillance to continue until April 2025 even if Congress chose not to reauthorize the law.
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