Just months after railing against the possibility of inappropriate spying during the election, the Trump Administration last week came out in support of permanently reauthorizing Section 702, a surveillance authority used to spy on Americans without a warrant. The position is likely to draw ire from members of both parties, because if there is one issue in hyper-partisan Washington that Republicans and Democrats agree on, it’s that Congress should reform – not make permanent – Section 702.
In 2015, Democrats and Republicans such as Reps. Zoe Lofgren (D-Calif.) and Thomas Massie (R-Ky.) worked together to reform our surveillance laws. This year, Congress should undertake another bipartisan effort to reform Section 702 of the Foreign Intelligence Surveillance Act, a NSA surveillance authority set to expire at the end of the year.
The government has a responsibility to help keep Americans safe, but in the process it must also ensure that our liberties are safeguarded. As part of this, Congress has an important oversight role and should work to reform Section 702 to bring it in line with our constitutional values.
{mosads}Section 702 was introduced as a tool to combat terrorism focused on individuals overseas, but in reality it is more expansive. Under Section 702, the government can target individuals overseas — including by eavesdropping on their conversations with people in the U.S. — for merely having information related to “foreign affairs” in their emails, chats, texts or phone calls. Thus, targets could include journalists, activists, private individuals, and companies who have no relation to terrorism or criminal activity whatsoever.
Most Americans would be shocked to know that under Section 702 the government collects hundreds of millions of communications each year —half of which may contain the private information of U.S. residents — without a warrant, probable cause, or many of the other protections guaranteed by our Constitution. The government does this in part by tapping into the internet backbone — the set of cables and switches that facilitate internet traffic across the world — and temporarily copying traffic flowing in and out of the United States to comb through it for communications associated with its tens of thousands of targets. Swept up in Section 702 surveillance is everything from mundane communications to e-mails with loved ones, intimate photos, private business conversations, and privileged attorney-client correspondence.
Once collected, the government asserts the right to use this information against Americans for purposes that have no relation to national security. For example, it is common practice for the FBI and other agencies to search through databases containing Section 702 information as part of purely domestic investigations. Current procedures allow use of this information in non-national security criminal and civil proceedings — sidestepping important Fourth Amendment protections against unreasonable searches and seizures.
Our founders rightly recognized that individuals’ ability to communicate — without fear of unwarranted intrusion by the government — is essential to a free society. The First and Fourth Amendments are inextricably linked. The fear of a Big Brother peering over our shoulders can chill free expression. In addition, there are conversations one might have with a spouse, a priest, or a close friend in private that you would not have on a crowded street. Thus, privacy from government is essential to free and open communication.
Our government can protect national security while still preserving Americans’ rights to free speech and free association. There are several improvements that could be made to the existing Section 702 program.
Among other things, Section 702 should not be used to conduct “backdoor searches,” where the government queries its databases with names and other identifiers of Americans without a warrant. Such conduct undermines our Fourth Amendment values and contradicts the government’s claim that the authority is focused on foreigners. In addition, Congress must address concerns regarding the fact that Section 702 is not limited to counterterrorism. Congress should take steps to ensure that Section 702 is not used for the type of generalized warrants the Fourth Amendment prohibits (and which helped spark the Revolutionary War), including by codifying recent restrictions that have already been adopted by the NSA to prevent improper collection of Americans’ communications through the Upstream program.
Congress should also insist on meaningful transparency and oversight over Section 702, which are currently lacking. Among other things, this should involve regular reporting of statistics related to Section 702 collection by companies and the government, including the number of Americans affected by the authority. Members of Congress must have the ability to conduct oversight of the NSA just as they would of other executive agencies. Transparency is critical to oversee the NSA’s practices and can be done without imperiling national security.
These – and other reforms – are critical to even partially address the Constitutional and policy concerns associated with Section 702. While they would not completely eliminate questions regarding Section 702, there is no question that were they to be implemented Americans’ privacy would be better protected than it is today.
In the current political climate, Section 702 provides a unique opportunity for Republicans and Democrats to work together to safeguard our core democratic values and individual rights. We all want to keep Americans safe. And we can ensure that safety while also making our government accountable to its citizens’ representatives.
Neema Singh Guliani is legislative counsel with the American Civil Liberties Union. Jesse Blumenthal manages technology and innovation policy at the Charles Koch Institute.
The views expressed by contributors are their own and are not the views of The Hill.