Last week, Congress passed a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act for six years. Section 702 is the surveillance law that authorizes the government to target foreigners located abroad to collect foreign intelligence information. However, we know that the government also sweeps up substantial quantities of Americans’ communications under Section 702. Despite the public’s calls for additional privacy protections, Congress passed the bill and called it a reform while hoping that no one would notice that it actually increases privacy risks. And you don’t have to be a criminal or a terrorist to be caught up in the government’s web. The law now authorizes several ways for the government to collect and use an average American’s communications.
One of the major misconceptions about Section 702 surveillance is the breadth of its purposes. The government always focuses on the authority’s uses for combatting national security threats like terrorism and espionage. However, the definition of foreign intelligence information that may be collected includes anything that is relevant to U.S. foreign affairs, which means that foreign journalists, activists, scientists, doctors, lawyers, and businesspeople could be targeted. Even when the government is targeting a person abroad as part of its counterterrorism efforts, the target is not necessarily a “bad guy.” The targets need only have information that is relevant to the government’s foreign intelligence objective. There are plenty of non-nefarious reasons a person, such as a journalist covering the civil war in Syria or a human rights activist working to resettle refugees, might have that kind of information.
Any American who is in touch with one of the more than 106,000 targets—regardless of whether the target is a “bad guy” or the communication relates to national security or foreign affairs—will have their emails and phone calls with that target swept up. The bill does nothing to limit this “incidental” collection of Americans’ communications. It may even increase this collection because it codifies, and may even expand, “abouts” collection, which allows the government to collect communications that are “about” a target, such as where they contain the target’s email or phone number in the contents of a communication, even when the target isn’t a party to the communication. The FISA Court has twice forced the government to stop this form of collection, most recently last spring, because the level of incidental collection of Americans’ communications, including wholly domestic communications, raised significant constitutional concerns. The government had systematically and persistently violated court-imposed rules to address those concerns.
The law now not only sanctions “abouts” collection, it paves the way for it to restart with the FISA Court’s permission. The language also introduces some ambiguity in the law that creates a risk that the government may interpret it to expand “abouts” collection by allowing the government to sweep up any communication that merely references the target, instead of just those that contain account identifiers specifically associated with the target. The government might argue that Congress has authorized it to collect any communication that merely contains the target’s name or that the newly expanded law allows it to collect all of the emails between nontargets that include the terms ISIS or al-Qaida or the name of an activist or journalist or businessperson who is being targeted.
Congress didn’t just expand the ways in which your communications could be collected under Section 702. It also explicitly authorized the government to engage in virtually unlimited warrantless backdoor searches of those communications for information about Americans or individuals located in the U.S. during the course of any investigation, no matter how minor. The law now even creates a perverse incentive for the FBI to conduct these backdoor searches before there is any factual basis to believe the subject of the search should be investigated because once a factual basis is established, a warrant is required. Indeed, the FBI has already been availing itself of this practice as a matter of routine for years. Thus, the FBI has said it will almost never need to get a warrant, because it will have already conducted all of the searches of Section 702 data it wants before the government has reason to believe the subject of the search committed a crime.
Unfortunately, while incentivizing warrantless searches at the earliest investigative stage possible, Congress did not add any protections against abuse. Although these backdoor searches can affect anyone, immigrants, Muslims, and people of color may face much higher risks of being targeted, particularly considering the Trump administration’s priorities.
We don’t know how the government is using Section 702 data, but we do know that it is singling out communities for increased scrutiny based on country of origin, faith, and race. The administration has deemed illegal immigration as a leading national security threat, and President Trump has even said that legal immigration poses a national security threat, claiming that “the wrong people” are being admitted to the U.S. Over the weekend, Trump’s re-election campaign aired a video and issued a press release that compared DACA recipients to a twice-deported undocumented immigrant who murdered two police officers.
Nothing in the law stops the government from searching databases containing Section 702 information for communications involving or referencing all of the nearly 700,000 individuals with DACA protections. The FBI could conduct these searches as fishing expeditions to try to identify evidence of criminal activity, no matter how minor, that could be used as grounds to remove DACA recipients’ protections and expedite their deportations or to identify other embarrassing or derogatory information that could be used to turn those individuals into informants.
Similarly, the FBI is free to warrantlessly search Section 702 data for the communications of Muslim Americans and residents. Those who have connections to any of the countries listed in the executive branch’s Muslim ban may be at particular risk for backdoor searches. However, the Muslim community is not the only community the government has deemed a terrorist threat and, as a result, may scrutinize more intensively than white or nonimmigrant communities. For example, the FBI identified Black Lives Matter activists as a national security threat, calling them “black identity extremists.” There is nothing in the new Section 702 law that would prevent the FBI from subjecting racial justice advocates to a higher level of scrutiny and Section 702 backdoor searches.
Ultimately, you don’t have to be an immigrant, a Muslim, or a person of color to be subject to Section 702 incidental collection or a backdoor search. But if you are an immigrant, a Muslim, or a person of color—or a member of another group at risk for increased surveillance—the stakes for your civil rights and civil liberties have never been higher. In passing this Section 702 reauthorization, Congress only made the situation worse.
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