Viewpoint: The Need for Alarm amongst Americans over the Renewal of Congress' Surveillance

Viewpoint: Reason for Americans to Fear Congress' Surveillance Reauthorization

A recent report from the Office of the Director of National Intelligence (ODNI) noted that under Section 702 of the Foreign Intelligence Surveillance Act (FISA), "bulk collection is not permitted." However, this law as reauthorized in April allows exactly that.

The Senate narrowly passed the renewal of key intelligence surveillance powers, known as RISAA, by a margin of 60-34, just before a midnight deadline on April 19. President Joe Biden quickly signed the reauthorization of these powers after much debate and disagreement in Congress. The debate centered around how to reform Section 702, which allows US intelligence agencies to collect communications data from certain foreigners outside the US but also allows them to spy on Americans.

The FBI, NSA, and other intelligence agencies can carry out "backdoor" searches on Americans if they have communicated with or are mentioned by a so-called targeted "foreign person." It's been discovered that purely domestic communications are being collected under FISA Section 702. The US government has conducted millions of such searches on Americans over the years.

Despite the controversy surrounding these practices, the House and Senate voted to extend Section 702 without putting forth safeguards to protect Americans from unconstitutional surveillance.

Congress ignored the House Judiciary Committee and House Intelligence Committee's recommendations to require intelligence agencies to get a warrant to query the communications of US persons (with exceptions for emergencies) and forbid them from buying data from commercial data brokers like Amazon, Apple, Google, Meta, Microsoft, and others. The House even passed the Fourth Amendment is Not for Sale Act, which prohibits intelligence agencies from purchasing data, but the bill was not considered by the Senate.

Many civic organizations, including the ACLU, Brennan Center for Justice, EPIC, and EFF, have spoken out against RISAA, with EFF noting that "RISAA does everything but reform Section 702."

RISAA could increase surveillance on Americans in two ways. The law broadens the definition of "electronic communication service provider" to include any service provider "who has access to equipment that is being or may be used to transmit or store wire or electronic communications."

Although the law makes exemptions for certain public facilities, such as restaurants and community centers, the large number of businesses offering Wi-Fi could mean that airports, train stations, transport companies (trains, subways, buses), and shopping malls might be compelled by the government to hand over their customers' communication data when presented with a directive to do so.

This change turns FISA into a domestic surveillance tool, as FISA Title I protects US persons (those who are a US citizen, corporation, permanent resident, or unincorporated association with a significant number of US citizens or permanent residents), requiring the government to present probable cause before the Foreign Intelligence Surveillance Court (FISC), while Title VII, where the controversial Section 702 is found, does not. This law demonstrates that the division between domestic and national intelligence is artificial because data does not recognize borders and is collected regardless of nationality.

This legislation leaves Americans without the robust protections of FISA Title I and significantly erodes their privacy and free-speech rights under the law and constitution. Trump's call to "KILL FISA" is not a baseless idea from a constitutional rights standpoint, particularly when it comes to the First Amendment.

Despite the First Amendment, Congress continues to create laws, especially those like FISA, which "abridge the freedom of speech, or of the press; or the right of the people peaceably to assemble."

In spite of mounting evidence of FBI searches of protesters' communications, journalists, and federal politicians under FISA Section 702, lawmakers chose not to fulfill their responsibility to safeguard Americans' rights. The First Amendment protects Americans' rights to assemble and speak freely, but Congress chooses to disregard this, as the example of FISA shows.

Not only is this a violation of the First Amendment but, according to Foreign Intelligence Surveillance Court decisions and the 2023 Privacy and Civil Liberties Oversight Board (PCLOB) report, surveillance under FISA Section 702 includes monitoring attorney-client communications, peaceful protests, and political campaign donations. The FBI carried out thousands of searches on people involved in civil unrest, social advocacy, and government criticism, including Black Lives Matter protesters and those related to the events of January 6, 2021, and numerous other examples of US citizens' constitutional rights being violated by FISA Section 702.

The House Intelligence Committee chairman, Mike Turner, defended the surveillance of protest movements with links to Hamas as a tool to combat national security threats. This would clearly infringe upon the First Amendment if applied as the congressman suggested. (Jeff Naft, a committee spokesperson, said the presentation aimed to show that protesters would not be a "target" under Section 702 even if there were connections to Hamas.)

Even though Section 702 of the Foreign Intelligence Surveillance Act, as extended by RISAA, would undoubtedly violate the First Amendment if applied as Turner suggested, Congress continued to ignore its duty to protect Americans.

When groups are first targeted due to their speech, this causes a chilling effect on free speech and association throughout society. This chilling effect could lead to the collapse of a democratic and republican form of government. Under the expansion of Section 702, all Americans are now in an unprecedented danger of having their communications intercepted and inspected by the government - so who would be brave enough to criticize the government?

Some members of Congress understand the severity of this "one of the most dramatic and terrifying expansions of government surveillance authority in history." However, concerningly, they included a loophole in the surveillance process for themselves. Intelligence agencies must inform these lawmakers before spying on them, while there's no notification given to the over 336 million Americans these officials promised to protect.

The problem is, most Americans are unaware that their communications have been monitored. In cases where people found out about their surveillance and filed constitutional challenges, such as FBI v. Fazaga, United States v. Hasbajrami, and United States v. Muhtorov, courts dismissed these challenges in favor of the intelligence agencies and national security.

We don't have exact figures or a clear understanding of how much surveillance all the intelligence agencies are conducting on Americans. The latest ODNI report discusses variations in counting and reporting the surveillance of Americans based on FISA Section 702. For instance, a query term might be used ten times or more but is only counted and reported as one.

Surveillance is now widespread, global, and unavoidable for innocent Americans. While safeguards are being removed with little to no resistance from Congress, the chances of a Supreme Court decision on this issue in the near future are slim. The court's pattern of deferring to the government in cases involving national security lowers the likelihood that Section 702 would be deemed unconstitutional.

If Americans can't safeguard their own rights and legislators can't limit surveillance within the bounds of the Constitution, one might question if the US is still a land of the free.

Read also:

The debate about Section 702 of the Foreign Intelligence Surveillance Act (FISA) has raised concerned opinions among civic organizations, with the Electronic Frontier Foundation (EFF) stating that the recently reauthorized law, known as RISAA, "does everything but reform Section 702."

Moreover, many Americans express their negative opinions regarding the expansion of Section 702, as they worry about their privacy rights and freedom of speech being infringed upon by overbroad surveillance practices.

Source: edition.cnn.com