Congress Still Has a Chance To Curb Section 702 Surveillance Abuses

With Republicans controlling both houses of Congress, President Donald Trump’s reversal from opponent to supporter of Section 702 of the Foreign Intelligence Surveillance Act (FISA) seemed certain to guarantee renewal of the law. That’s not what happened. Instead, Section 702 of the controversial spying legislation won only a temporary extension, to April 30, as civil libertarians and surveillance-state supporters from both major parties continue to battle. Hopefully, the outcome is the long-deserved demise of surveillance practices that threaten the privacy of Americans.

Enacted in 2008, Section 702 of FISA authorized the ongoing interception (originally under executive authority) of online communications involving alleged national security threats through “the targeting of non-United States persons,” as the Office of the Director of National Intelligence puts it.

But intercepting communications inevitably scoops up messages and data involving Americans. As the U.S. government’s own Privacy and Civil Liberties Oversight Board put it in a 2023 report, “Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries” in which multiple searches on intercepted data are run as part of a single action. The report cautioned that surveillance often extends to Americans “upstream” of nominal foreign targets.

Just two years ago, then-presidential candidate Trump demanded that Congress “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS,” referring to revelations that his campaign organization had been the subject of abusive government surveillance.

But now Trump is president, and the spies work for him. His views have changed accordingly. “The fact is, whether you like FISA or not, it is extremely important to our Military,” he argued earlier this month as he called for a “clean” (unamended) reauthorization of Section 702.

Surveillance, however, is one of those few remaining issues where Washington, D.C. battle lines are not inherently partisan. President Joe Biden supported Section 702 surveillance powers when he was in office, just as Trump does now. Meanwhile, progressive Rep. Ro Khanna (D–Calif.) insists that “everyone who loves the constitution must vote no” on FISA extension, echoing libertarian-leaning Rep. Thomas Massie’s (R-Ky.) vow of “no FISA reauthorization without a warrant requirement for US citizens!” FISA’s Section 702, which periodically expires, has repeatedly won reauthorization—but often by squeakers, as civil libertarian lawmakers demand reforms to the law or the outright elimination of its powers.

Even Trump, while calling for FISA 702 renewal, concedes that the law is dangerous. “While parts of FISA were illegally and unfortunately used against me in the Democrats’ disgraceful Witch Hunt and Attack in the RUSSIA, RUSSIA, RUSSIA Hoax, and perhaps would be used against me in the future, I am willing to risk that as a Citizen in order to do what is right for our Country,” he wrote on Truth Social.

But not everybody has Donald Trump’s legal team, or his faith that the tradeoff between the law’s risks and rewards is worthwhile. Many people, in fact, view the misuse of surveillance power in domestic political squabbles as further evidence that the government needs to be stripped of some of its toys. The result, last week, was a short-term extension of Section 702 through April 30 while Congress continues debating the matter.

For those of us who take seriously the warnings about the law, including those of the government’s own civil liberties oversight board—which Trump gutted last year and whose existence is now caught up in litigation—that means a fresh opportunity to reform or kill Section 702.

“Section 702 is rife with problems, loopholes, and compliance issues that need fixing,” warns Matthew Guariglia of the Electronic Frontier Foundation (EFF) in a recent call for changes in Section 702 or its elimination. “The National Security Agency collects full conversations being conducted by and with targets overseas—including by and with Americans in the U.S.—and stores them in massive databases. The NSA then allows other agencies, including the Federal Bureau of Investigation, to access untold amounts of that information.”

Guariglia adds that the FBI, which supposedly focuses primarily on domestic matters and not overseas intelligence, “can query and even read” the U.S. side of international communication without a warrant and without informing targets that federal agents are pawing through their messages.

Sen. Ron Wyden (D–Ore.), who has opposed domestic surveillance activities for many years, often alongside Sen. Rand Paul (R–Ky.), says the situation is even worse than is widely understood. Last month he cautioned that “there’s another example of secret law related to Section 702, one that directly affects the privacy rights of Americans. For years, I have asked various administrations to declassify this matter. Thus far they have all refused….When it is eventually declassified, the American people will be stunned that it took so long and that Congress has been debating this authority with insufficient information.”

The Cato Institute’s Patrick G. Eddington takes such warnings to heart. Earlier this month, he summarized the debate over Section 702 thusly:

Congress is being asked to grant a clean 18-month reauthorization based on classified threat vignettes produced by the agencies seeking reauthorization, evaluated by an oversight board that has been politically gutted, with the internal compliance watchdog that would catch abuses abolished, in a context where sensitive FBI searches of Americans’ communications tripled last year with no explanation, while a senator with an excellent predictive track record on surveillance abuses warns that the Section 702 program is operating under a secret legal interpretation that would “stun” the American public if declassified.

Let’s remember that the current U.S. president was once himself a target of federal surveillance, notwithstanding his recent conversion to national surveillance cheerleader upon regaining control of the intelligence apparatus. It’s high time to hold a full, transparent, and public debate over the domestic spying powers that Section 702 grants to the intelligence community. Or else, we should get rid of the law and the worrisome and secret activities that it authorizes.

We know that the federal government has abused its surveillance powers. Lawmakers now have an opportunity to reform such activities or eliminate their legal authorization. They need to act.