Skip Navigation

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.