The fight over a law that enables widespread government surveillance

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In the 1970s, after President Richard Nixon used the FBI and other agencies to surveil both foreign and US citizens he perceived as hostile to his administration, President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act. The law created the Foreign Intelligence Surveillance Court, which oversees the collection of intelligence about foreign citizens inside the US. In the 2000s, after the intelligence services fell short in tracing the perpetrators of 9/11, Congress added a new clause to the law: Section 702, which allowed the government to surveil foreign nationals outside the US by tapping their phones and collecting emails and text messages. To do so, intelligence agencies wouldn’t need a traditional warrant, but merely approval from the FISC—which meets in secret and only hears testimony from government agents.

If collecting texts, emails, and phone calls from foreign nationals was the limit of this capability, it would probably be a lot less controversial than it is. But under Section 702, intelligence agencies are also allowed to collect or search for phone calls, emails, and text messages that are sent or received by US citizens—provided they are not the original target of the search. This seems to many like an obvious breach of the Fourth Amendment’s protection from unreasonable search and seizure, but the government and intelligence agencies have argued that it is a necessary evil in order to track down terrorists and other criminals, and that even under the Fourth Amendment, officials can search and/or seize property without a warrant if the alleged crime is serious enough.

Over the past two weeks, the debate over Section 702 has reached a fever pitch—the law is set to expire at the end of the year and, so far, hasn’t been renewed. As a result of the controversy surrounding the law’s creation, it came with a built-in expiration date; it was last renewed in 2018, after much debate about the propriety of the sort of surveillance programs that the whistleblower Edward Snowden revealed when he leaked classified documents about them a few years earlier. Two proposed bills currently before Congress aim to reform the law—one would add restrictions; the other would actually expand the existing law to broaden the range of third parties that could be compelled to produce data. Since neither is likely to be considered before the end of the year, a military-spending bill that is expected to get President Biden’s signature by then contains a clause that would extend Section 702’s life until the end of April 2024, to allow more time for debate.

Critics of the law have plenty of ammunition when it comes to the misuse of Section 702. According to NBC News, a decision this month by the Foreign Intelligence Surveillance Court disclosed that FBI employees searched surveillance data for the names of both a US senator and a state senator (who were not named), while another FBI employee searched a database for the Social Security number of a judge who had complained about a police chief’s alleged civil rights violations. A recent report from the Center for Strategic and International Studies noted that the FISC admitted that the FBI has engaged in “persistent and widespread” violations of the law, including the search of communications related to more than a hundred Black Lives Matter protesters, as well as a search in 2017 for two men believed to be “of Middle Eastern descent” who were seen loading boxes into a truck.

The CSIS report notes that in 2015, the FBI used Section 702 to surveil Xiaoxing Xi, a US citizen and professor at Temple University. Xi was eventually charged with sharing sensitive technology with Chinese scientists; the Justice Department later dropped the charges after they were shown to be untrue, but Xi said that, as a result of the case, he suffered irreparable damage to his career and finances. According to a court decision this year, the FBI improperly searched for information in a FISA database almost three hundred thousand times in 2020 and 2021. (The FBI says that improper searches under Section 702 have declined dramatically since it changed the process that it uses to conduct surveillance.)

The government and US intelligence agencies say that they have plenty of evidence to support keeping Section 702 just the way it is. Lisa Monaco, the deputy attorney general, said in April that the government had used Section 702 to gather “vitally important” intelligence about the war in Ukraine. Christopher Wray, the FBI director, told a Senate committee last week that in one recent case, the law helped authorities alert three hundred people that they might be targets of an Iranian cyberattack; Wray added that losing Section 702 would be “devastating” to law enforcement’s ability to counter cyber and terrorism threats. In 2013, the then-director of the National Security Agency said that Section 702 had helped thwart as many as forty-two terrorist plots and foiled an Al Qaeda–linked plan to bomb the New York City subway in 2009. According to NBC, almost 60 percent of the information in Joe Biden’s daily briefing includes information provided under Section 702.

These statistics sound impressive, but not everyone takes them at face value. According to a report from Reuters, a US court ruled last year that one of the country’s highest-profile domestic surveillance programs was conducted illegally, and the judges noted that claims made by security officials about the effect of the surveillance were “inconsistent with the contents of the classified record,” and therefore not credible. Some conservative commentators are also against Section 702. Andrew Napolitano, a judge and former Fox News analyst, wrote in an op-ed for the Orange County Register that the law is an abuse of the Fourth Amendment, and that any protections offered by the FISC are irrelevant because the court approves virtually every request.

Some observers believe that conservative opposition to extending Section 702 stems in part from Donald Trump’s response to the FBI investigation into his alleged ties to Russia—the Justice Department’s inspector general found that, during that investigation, applications for court orders to wiretap Carter Page, a former Trump adviser, were riddled with errors and omissions. But not all conservatives agree about the law. The American Enterprise Institute says that the importance of Section 702 in countering cyberterrorism “cannot be overstated,” arguing that the law protects the nation’s infrastructure by stopping attacks that could “cripple essential systems, from power grids to financial networks.”

The debate over Section 702 is not totally binary—yes or no. A number of privacy advocates have called on Congress to force the FBI to obtain either a warrant to investigate domestic activities or a court order when it conducts foreign intelligence investigations. As CSIS notes, both these steps would require agents to demonstrate probable cause before they search surveillance data. The federal Privacy and Civil Liberties Board, which supports the renewal of Section 702, has also recommended that the FBI, in particular, be required to justify its searches on an individual basis. Civil rights groups say that this could help prevent searches that are based primarily on factors like race or religion.

Intelligence agencies, however, have countered that requiring a warrant or court order for every search would overwhelm the FISC and result in significant delays in surveillance cases that might be time-sensitive. In a November op-ed in the Wall Street Journal, Michael B. Mukasey, a former US attorney general, and Jamil N. Jaffer, executive director of the National Security Institute at George Mason University, argued that America’s security depends on its ability to understand and respond to global terrorism, and that letting Section 702 lapse over concerns about privacy would be an “egregious mistake.” The harvesting of phone calls and emails from American citizens is “a feature, not a bug” of the law, they argue, since many global terrorism campaigns involve contact with American accomplices. In the ever-present tug-of-war between national security and privacy, privacy seems to lose most of the time.

Not that privacy advocates are the only ones concerned about Section 702 renewal: journalism advocacy groups have also argued that the law threatens the ability of journalists to do their jobs properly without fear of unreasonable surveillance. The International Press Institute said earlier this year that the law “puts reporter-source confidentiality and the privacy of journalists at risk.” Grayson Clary, a staff attorney at the Reporters Committee for Freedom of the Press, said that the digital communications of US or US-based journalists with foreign sources could be revealed, and could also be stored and searched by US agencies for up to five years. According to a 2014 report from Human Rights Watch, the fear of surveillance has already made some sources “less inclined to speak to American journalists.”

Other notable stories:

• Yesterday, Axel Springer, the German media behemoth that owns Politico and Business Insider in the US, announced a licensing deal with OpenAI under which the latter company will pay the former to use its content to populate answers in ChatGPT, which OpenAI makes, while also linking back to the original source; the Wall Street Journal describes the deal as a “significant milestone” as publishers push for compensation from AI companies. In related news, the Times hired Zach Seward, a cofounder of Quartz, as its first ever newsroom leader focused on AI initiatives (though the paper says its copy will “always be reported, written and edited” by journalists). And the White House’s new AI council met for the first time to discuss implementing Biden’s executive order on AI.
• Mike Lawler, a Republican US congressman who won a swing district in last year’s midterms, is a “darling of the national press corps,” doing frequent hits on cable news, David McKay Wilson reports for the local Journal News—but back in his district he “bars the press from his Congressional office’s public Town Hall meetings and declines to answer questions about why he does so.” At one event, “attendees were threatened with expulsion if they recorded what Lawler had to say.” Lawler also coordinated a letter to Reuters expressing concern that a journalist for the outlet may have had prior knowledge of Hamas’s recent attack on Israel—based on a claim that had already been debunked.
• Vanity Fair’s Charlotte Klein spoke with student journalists at Harvard and the University of Pennsylvania who have beaten national outlets to big stories about the schools’ presidents, who have been at the center of a media storm following controversial recent remarks to Congress about campus anti-Semitism. (Penn’s president resigned; Harvard’s won backing to remain in the post for now.) “We don’t typically do live updates just because our staff is typically in and out of class,” a journalist at Penn said. “But we were really committed to providing our readers with a blow-by-blow of what was happening.”
• The Post’s Jeremy Barr went behind the launch of King Charles, Gayle King and Charles Barkley’s new weekly show on CNN that has rated poorly since its debut last month (at least in terms of traditional TV viewership). Ryan Kadro, a CNN executive, said that “anybody who knows anything about television knows that these things take time,” though a former CNN producer told Barr that the format of the show seems muddled, asking “Is it supposed to be a cultural show? Is it supposed to be a politics show?”
• And authorities in Azerbaijan arrested a journalist for the seventh time in less than a month, detaining Hafiz Babali, an investigative reporter and editor at the independent news agency Turan, in connection with a broader crackdown on Abzas Media—a different outlet, to which Babali has contributed, that has investigated corruption among Azerbaijani officials. (ICYMI, we wrote about the crackdown on Tuesday.)

ICYMI: Alexa Koenig on the potential and pitfalls of open source investigations

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Mathew Ingram was CJR’s longtime chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.