US surveillance of Americans must stop

When Edward Snowden revealed that the National Security Agency (NSA) had misused foreign intelligence surveillance laws to collect millions of Americans’ phone records, the resulting public outcry eventually led Congress to ban the practice. How would Americans and their lawmakers react if they learned that the government was misusing these powers to access the actual contents of millions of Americans’ communications, without a warrant or even a factual basis to suspect criminal activity?

According to a recent government report, that’s exactly what’s happening. The Office of the Director of National Intelligence recently disclosed that in 2021 the FBI conducted up to 3.4 million warrantless searches seeking Americans’ phone calls, emails, and text messages — using a law that, on paper, can only be used to spy on foreigners overseas.

The law in question, Section 702 of the Foreign Intelligence Surveillance Act, was one of the many laws Congress passed after 9/11 to expand the government’s surveillance powers. It allows the NSA to target any foreigner overseas and collect all of their communications, as long as one of the agency’s goals is to acquire foreign intelligence. No warrant is required because foreigners overseas aren’t protected by the Fourth Amendment.

Of course, foreigners often communicate with Americans, and so the surveillance was bound to sweep in large amounts of what Americans think, say, and write. If the government’s purpose were to access that information, it would have to obtain a warrant. Congress therefore included two provisions in the law to help bolster its constitutionality. First, Congress required the government to certify that it did not intend to target Americans — that is, that any acquisition of Americans’ communications would be merely “incidental.” Second, Congress required the government to “minimize” the sharing, use, and retention of this incidentally acquired information.

But over the years, these requirements have done little to protect Americans from warrantless searches. Information about Section 702’s operation can be gleaned from official disclosures, court opinions, and a 2014 report by the Privacy and Civil Liberties Oversight Board, an independent government watchdog. These sources show that, rather than “minimize” the sharing and retention of Americans’ communications, the NSA regularly shares raw Section 702 data with the FBI, the CIA, and the National Counterterrorism Center, and these agencies keep that data for at least five years.

In addition, each agency engages in the practice of searching Section 702-aqcuired data for Americans’ communications. The FBI routinely conducts such searches in purely domestic cases having nothing to do with foreign intelligence, often at the “assessment” stage — namely, before the FBI even has a factual basis to open a criminal investigation.

In other words, having obtained the communications without a warrant by certifying that it doesn’t intend to target any Americans, the government — as a matter of policy — runs searches that explicitly target Americans.

This bait-and-switch itself isn’t news. What the DNI report reveals is how often these backdoor searches happen: 3.4 million times in 2021 alone. The report notes that the figure likely overstates the number of Americans affected, in part because there could be multiple searches relating to a single individual. But even if the figure is off by an order of magnitude, that still means that every day, nearly a thousand Americans are subject to a warrantless search of their personal communications.

Small wonder that the FBI resisted producing this number for so many years. This staggering figure, even with all the government’s caveats, makes clear that there’s nothing “incidental” about Section 702’s impact on Americans. Warrantless access to Americans’ communications has become a core feature of a surveillance program that purports to be solely foreign-focused.

True, the Foreign Intelligence Surveillance Court — which oversees the government’s use of foreign intelligence surveillance authorities — has blessed this practice. But the same court also endorsed the NSA’s bulk collection of Americans’ phone records. That didn’t stop three regular federal courts from ruling the practice illegal. Nor did it stop Congress from banning it.

The most recent report, however, has not generated the same public uproar as the Snowden disclosures. Indeed, the media coverage of the report largely missed the significance of this disclosure. That could be because the “backdoor search” scandal — unlike the Snowden revelations — has unfolded in increments and through muted official disclosures, rather than all at once through a spectacular leak. It could also stem from the relative complexity of the statute and its operation.

But we should not let the form obscure the substance: The government is conducting warrantless searches of the most sensitive information we generate — our private communications — on a dizzying scale. If anything, that’s an even greater intrusion on Americans’ privacy than the NSA’s bulk collection of phone records.

Congress must once again act to stop the government from using foreign intelligence surveillance authorities to make an end run around Americans’ constitutional rights. Section 702 comes up for reauthorization next year. When it does, Congress should require government officials to obtain a warrant any time they wish to search Section 702-acquired data for Americans’ communications.

Such a measure has twice passed in the House but failed to become law. The government’s report should erase any doubt that it is necessary. Enacting this sensible solution will leave the government ample authority to collect information on foreign actors, while preserving vital Fourth Amendment safeguards for Americans.

Elizabeth Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.