At the end of the year, the government’s authority to secretly collect and retain the electronic communications of innocent Americans without a warrant will expire, unless Congress passes legislation that reauthorizes or temporarily extends it. Without major reforms, Congress should not allow this dangerous power to continue.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the government to collect and retain emails, texts, IP addresses and phone records without a warrant if the target is a foreigner overseas. The problem is that when foreigners communicate with Americans in the United States or anywhere else, the surveillance pulls in their communications, as well.
All these communications and records are retained in a vast database. At an oversight hearing earlier this year, House Judiciary Committee Chairman Jim Jordan said the FBI had conducted 204,000 warrantless searches of the database to find information about Americans over a 12-month period. The concern is bipartisan. Ranking member Rep. Jerrold Nadler has warned that privacy and civil rights are insufficiently protected under the current law.
The potential for abuse is unlimited. For example, the FBI could conduct secret warrantless surveillance of a foreign national specifically for the purpose of capturing the communications of a particular American who is in contact with that individual, and then conduct warrantless searches of that American’s electronic communications.
The Fourth Amendment to the U.S. Constitution requires the government to get a warrant for a search, “and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fishing expeditions through the “persons, houses, papers and effects” of Americans are not permitted.
The House Judiciary Committee has advanced a bill titled the Protect Liberty and End Warrantless Surveillance Act, H.R. 6570, that would reauthorize Section 702 but would require the government to obtain a warrant for all queries seeking information on U.S. persons.
The House Intelligence Committee has written a competing bill that would reauthorize Section 702 without the warrant requirement, and even expand the government’s authority to seek data on Americans. Senator Mike Lee, R-Utah, warned on X that the Intelligence Committee bill “expands the scope of FISA 702” in a way that makes it “applicable to hotels, restaurants, department stores, or anyone else offering public wifi.” According to Lee, “If this bill were to pass, and you went to McDonald’s and used the McDonald’s wifi service, the NSA could go to McDonald’s and obtain that wifi data — without a warrant.”
A third proposal would have Section 702 reauthorization added to the National Defense Authorization Act, a “must pass” bill that could be voted on this week. However, some GOP lawmakers might withhold their votes for the NDAA if the FISA provision is added to it, endangering the entire package.
Sadly, the government does not deserve the benefit of the doubt. Secrecy prevents oversight and shields abuses of power. For example, disturbing revelations have come out in the Missouri v. Biden case and elsewhere showing that agencies across the U.S government coordinated with third-party groups to conduct mass surveillance and censorship of Americans’ constitutionally protected free speech on social media platforms. It might be best to let Section 702 simply lapse. National security can be protected without it. Just get a warrant.
—The Editorial Board, Southern California News Group
