The Foreign Intelligence Surveillance Act (FISA) was signed into law in 1978 as a response to the numerous privacy violations which took place under President Nixon. The law established the now infamous Foreign Intelligence Surveillance Court (FISC) which meets behind closed doors to review and approve surveillance warrants. The law became a household name following the September 11th attacks when it was repeatedly amended to support President Bush’s War on Terror.
Under the Bush Administration, FISA earned its controversial status when the New York Times reported that the NSA had been engaged in a domestic wiretapping program, codename Stellar Wind, without obtaining a legally mandated FISA warrant. Even after the Snowden leaks the United States continues to spy on American citizens via its unconstitutional surveillance program.
Public pressure eventually pushed the NSA among others to announce that they would begin seeking warrants through the FISC. The act has since been updated and amended numerous times and its most recent changes came in the FISA Amendments Reauthorization Act of 2017.
Currently, the bill has been prolonged until April 2024 and lawmakers in both houses of congress are working to reinstate §702.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows US authorities to spy on foreigners to prevent terrorist attacks. However, a vast amount of data from US citizens is scooped up by the NSA and regularly abused by the FBI, tasked with law enforcement and not foreign intelligence gathering, used this collected material via backdoor searches on US citizens without warrants or probable cause in order to pursue domestic criminal cases against US citizens.
In 2022 alone, Rep. Jim Jordan disclosed that the FBI used the §702 database to spy on 204,000 American citizens. That would be the equivalent of monitoring every resident of Salt Lake City, Utah without cause. This kind of unwarranted surveillance flies in the face of the US Constitution namely the right against unwarranted search and seizure. The criminal cases which were supported by the FBI’s use of this database, according to Rep. Jarrold Nadler, are often those which have “nothing to do with national security.”
The FBI does not have a strong reputation of respecting the privacy of American citizens and §702 gives them free reign to access surveillance information which is collected to prevent terrorist activity. FBI Director Christopher Wray said it best when he stated that “A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have.”
If they cannot justify a search warrant with sufficient evidence, then the FBI has no right whatsoever to pursue data on American citizens. The rights enshrined in the US Constitution must be respected by every level of government, from local law enforcement agencies up to the Federal Bureau of Investigation.
Discussion of this bill surged to the front of political discussion as we neared the date of reauthorization. To answer your question -- "was FISA §702 reformed?" -- not quite. The US House of Representatives has kicked the can down the road with the FISA Reform and Reauthorization Act of 2023, and a reform vote has been postponed until April of 2024. In the meantime, FISA and §702 remain unchanged. Data continues to be collected on a massive scale by intelligence agencies, which is then shared with the FBI pursuant to their criminal cases. This is much more alarming in light of recent reporting that in addition to illegally collecting data on US citizens, the NSA has also been actively purchasing massive data sets from data brokers. Which includes any and all data made available by the Third Party Doctrine.
If the world is aware that the United States intelligence apparatus is passing along inconceivable amounts of data to law enforcement, this will inevitably have an effect on personal behavior. American citizens cannot assume that they are not one of these 204,000 individuals because the information gathered has an extremely wide scope. If you were using the WiFi in a hotel while on vacation abroad? Your data may have been collected. Does your company need you to travel to a partner organization across the ocean? That sensitive corporate data may be vacuumed up.
The oft quoted cynical phrase of “If you have nothing to hide, then you have nothing to fear” is thrown around in relation to these warnings, but in reality you might not have anything to hide today, but you cannot predict the future and know if something perfectly accepted and legal now is deemed a threat in the future.
If citizens have any concern that their beliefs, values, or expressions may someday land them in legal peril, this will impact the ways in which they speak and behave. This kind of soft coercion is wholly incompatible with the democratic principles that the United States and Europe are built upon.
Preventing absolute government surveillance should be an issue which unites politicians and citizens from across the political divide. There are ghastly historical cases which have supported precisely this kind of invasive and harmful legislation. Hoover’s FBI gathered information to smear his political opponents, East Germany was controlled and policed by the Stasi, and in contemporary Russia the FSB threatens any public dissent against President Vladimir Putin.
This issue is too important to be swept up into party politics. In the wake of September 11th both parties were eager to push through the Patriot Act in hopes of protecting against terrorism. Today both parties need to stand together against a corrosive threat from within.
The land of the free cannot idly sit back and accept the expansion of a police state without a fight.
President John F. Kennedy said “Today the eyes of all people are truly upon us-- and our governments, in every branch, at every level, national, state and local, must be as a city upon a hill – constructed and inhabited by men aware of their great trust and their great responsibilities.” The FBI has failed to honor this trust and responsibility and for that failure they cannot receive further extensions of power.
If the United States wants to live up to its promise of being a beacon of hope and a defender of democracy, its citizens and legislators must unite against this push to extend FISA §702.
Instead FISA 702 must be abolished once and for all.
We at Tuta together with other privacy-first companies are making clear in a joint open letter (Published 2023-12-12) that:
Congress should not provide a blank check for surveillance overreach by reauthorizing FISA 702 in NDAA;
Congress should pass a strong surveillance reform bill such as the Government Surveillance Reform Act (GSRA) or the Protect Liberty and End Warrantless Surveillance Act (PLEWSA), and that measures such as the House and Senate Intelligence bills would only cement and expand the status quo of surveillance abuses.
Simply put, the vitality of the Internet economy depends on strong surveillance reform that leave no room for backdoors.
Dear Members of the House of Representatives,
We, a group of companies, builders, and providers of critical internet-based products and services, write to you today in support of legislative proposals, such as the Government Surveillance Reform Act, that would effectively address bipartisan and bicameral concerns around consistent surveillance overreach. We also applaud the Protect Liberty and End Warrantless Surveillance Act, which takes key steps forward in reform, and encourage you to strengthen the bill further.
Additionally, current efforts to reauthorize Section 702 until April through the National Defense Authorization Act would amount to rubber-stamping surveillance abuses, and we strongly oppose such efforts.
As providers of digital products and services, both nonprofit and for-profit, we depend on the trust of our customers to sustain digital communities. If widely-documented abuses go unaddressed in legislation, individuals will remain concerned that their most intimate information could be collected by intelligence agencies without accountability, thus deteriorating the economic and social power of the Internet.
While the current legislative debate may have been sparked by the imminent expiration of Section 702 of FISA, the widely-documented surveillance abuses highlighted by policy experts and members of Congress across the political spectrum would continue under narrow 702 “fixes,” especially ones that only cosmetically change FISA. For that very reason, we are particularly concerned by reauthorization proposals by the House and Senate Intelligence Committees that would only cement overbroad surveillance.
A true reform proposal will need to address similar ways that the government surveils Americans without adequate oversight and accountability, including warrantless purchases of Americans’ information from data brokers, narrowing the scope of surveillance in line with the President’s own EO 14086, increasing the ability of Americans to stand up for their rights in court, and, optimally, parallel reforms of EO 12333. These provisions would ensure that surveillance overreach does not simply continue the day after a reform bill passes, but under a slightly different authority. In other words, Congress should take this “functional” approach to surveillance reform by addressing end results.
The Protect Liberty and End Warrantless Surveillance Act, while not containing all of these provisions, would take critical steps forward in shielding Americans from overbroad surveillance. Most notably, it would protect Americans from warrantless data broker purchases and would create an ironclad warrant requirement for 702 surveillance of US persons, among other provisions. Lawmakers should consider strengthening the bill, for example by increasing transparency and accountability measures.
Of particular importance in both bills is inserting language codifying the scope of surveillance proposed by the President’s own EO 14086 to tether surveillance of non-US persons to basic guardrails.
We remain available to discuss the impact of reform proposals on the economy and on the privacy of people online as you continue your thoughtful work.
Foundation for American Innovation
The Tor Project
Superbloom (previously known as Simply Secure)
Action Network & Action Builder
Efani Secure Mobile