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Analysis

US Surveillance of Americans Must Stop

The federal government is using foreign intelligence powers to make an end run around Americans’ constitutional rights. Congress must step in.

Last Updated: May 20, 2022
Published: May 20, 2022
hand tapping on an iphone screen
Olga Pankova/Getty

This article was first published at The Hill.

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

Accord­ing to a recent govern­ment report, that’s exactly what’s happen­ing. The Office of the Director of National Intel­li­gence recently disclosed that in 2021 the FBI conduc­ted up to 3.4 million warrant­less searches seek­ing Amer­ic­ans’ phone calls, emails, and text messages — using a law that, on paper, can only be used to spy on foreign­ers over­seas.

The law in ques­tion, Section 702 of the Foreign Intel­li­gence Surveil­lance Act, was one of the many laws Congress passed after 9/11 to expand the govern­ment’s surveil­lance powers. It allows the NSA to target any foreigner over­seas 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 over­seas aren’t protec­ted by the Fourth Amend­ment.

Of course, foreign­ers often commu­nic­ate with Amer­ic­ans, and so the surveil­lance was bound to sweep in large amounts of what Amer­ic­ans think, say, and write. If the govern­ment’s purpose were to access that inform­a­tion, it would have to obtain a warrant. Congress there­fore included two provi­sions in the law to help bolster its consti­tu­tion­al­ity. First, Congress required the govern­ment to certify that it did not intend to target Amer­ic­ans — that is, that any acquis­i­tion of Amer­ic­ans’ commu­nic­a­tions would be merely “incid­ental.” Second, Congress required the govern­ment to “minim­ize” the shar­ing, use, and reten­tion of this incid­ent­ally acquired inform­a­tion.

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

In addi­tion, each agency engages in the prac­tice of search­ing Section 702-aqcuired data for Amer­ic­ans’ commu­nic­a­tions. The FBI routinely conducts such searches in purely domestic cases having noth­ing to do with foreign intel­li­gence, often at the “assess­ment” stage — namely, before the FBI even has a factual basis to open a crim­inal invest­ig­a­tion.

In other words, having obtained the commu­nic­a­tions without a warrant by certi­fy­ing that it does­n’t intend to target any Amer­ic­ans, the govern­ment — as a matter of policy — runs searches that expli­citly target Amer­ic­ans.

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

Small wonder that the FBI resisted produ­cing this number for so many years. This stag­ger­ing figure, even with all the govern­ment’s caveats, makes clear that there’s noth­ing “incid­ental” about Section 702’s impact on Amer­ic­ans. Warrant­less access to Amer­ic­ans’ commu­nic­a­tions has become a core feature of a surveil­lance program that purports to be solely foreign-focused.

True, the Foreign Intel­li­gence Surveil­lance Court — which over­sees the govern­ment’s use of foreign intel­li­gence surveil­lance author­it­ies — has blessed this prac­tice. But the same court also endorsed the NSA’s bulk collec­tion of Amer­ic­ans’ phone records. That didn’t stop three regu­lar federal courts from ruling the prac­tice illegal. Nor did it stop Congress from banning it.

The most recent report, however, has not gener­ated the same public uproar as the Snowden disclos­ures. Indeed, the media cover­age of the report largely missed the signi­fic­ance of this disclos­ure. That could be because the “back­door search” scan­dal — unlike the Snowden revel­a­tions — has unfol­ded in incre­ments and through muted offi­cial disclos­ures, rather than all at once through a spec­tac­u­lar leak. It could also stem from the relat­ive complex­ity of the stat­ute and its oper­a­tion.

But we should not let the form obscure the substance: The govern­ment is conduct­ing warrant­less searches of the most sens­it­ive inform­a­tion we gener­ate — our private commu­nic­a­tions — on a dizzy­ing scale. If anything, that’s an even greater intru­sion on Amer­ic­ans’ privacy than the NSA’s bulk collec­tion of phone records.

Congress must once again act to stop the govern­ment from using foreign intel­li­gence surveil­lance author­it­ies to make an end run around Amer­ic­ans’ consti­tu­tional rights. Section 702 comes up for reau­thor­iz­a­tion next year. When it does, Congress should require govern­ment offi­cials to obtain a warrant any time they wish to search Section 702-acquired data for Amer­ic­ans’ commu­nic­a­tions.

Such a meas­ure has twice passed in the House but failed to become law. The govern­ment’s report should erase any doubt that it is neces­sary. Enact­ing this sens­ible solu­tion will leave the govern­ment ample author­ity to collect inform­a­tion on foreign actors, while preserving vital Fourth Amend­ment safe­guards for Amer­ic­ans.