As the debate over whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act intensifies, the Biden administration is increasingly claiming that the law is critical to its efforts to combat illicit fentanyl trafficking by China and other foreign actors.
The claim may well be true, but it elides a key point: Commonsense reforms to protect Americans’ privacy would not make the law less effective in addressing international drug trafficking or other foreign threats. To the contrary, it is the administration’s own intransigence on such reforms that has put reauthorization at risk.
Section 702, which is set to expire at the end of this year, allows the government to collect the communications of non-Americans located abroad without a warrant. Although the law prohibits the government from targeting Americans, the surveillance inevitably sweeps in Americans’ private phone calls, emails and text messages, as well. Despite Congress’s direction to “minimize” the retention and use of such “incidentally” collected information, the government has adopted a practice of routinely searching Section 702-acquired data for Americans’ communications — again without a warrant.
Members of Congress on both sides of the aisle have expressed outrage at the volume of these “backdoor” searches for Americans’ data (intelligence agencies conducted over 200,000 such searches last year alone). They have also decried the FBI’s frequent abuses of the minimal rules governing this practice — abuses that include baseless searches for the communications of politicians, journalists and racial justice protestors. Many have vowed not to reauthorize Section 702 without “significant reforms.”
Seeking to fend off serious reform efforts, administration officials have repeatedly emphasized the ways in which intelligence agencies have used Section 702 to target fentanyl traffickers. Information acquired under the law, they say, helped the government trace precursor chemicals for fentanyl manufacturing to the People’s Republic of China, identify smuggling routes and techniques and seize fentanyl and the equipment used to synthesize it. Anonymous intelligence officials claim they will be “blind” to fentanyl trafficking if they were to “lose” Section 702.
Note the non sequitur. Defenders of the status quo tend to cast all criticism of Section 702 as a call for the authority to be eliminated. But the choice before Congress is not between reenacting the law or letting it expire. There is a third alternative: reauthorizing Section 702 with reforms that protect Americans’ privacy rights without compromising the program’s value as a foreign intelligence tool. Indeed, even Section 702’s most ardent supporters in Congress recognize the need for changes.
Chief among the reforms Congress is considering is a warrant requirement for backdoor searches. Such a measure would not inhibit intelligence agencies’ efforts to identify and disrupt fentanyl smuggling networks. National security officials have repeatedly cited Section 702’s value in identifying and countering foreign narcotics traffickers. But a warrant requirement for backdoor searches of Americans’ communications would not affect the government’s ability to surveil foreigners — which is, after all, Section 702’s purpose. In fact, despite ample opportunity and incentive, intelligence officials have not identified a single instance in which a backdoor search contributed to a counternarcotics success.
Nor would a warrant requirement prevent law enforcement from investigating Americans suspected of involvement in the international fentanyl trade. If agents reviewing foreign traffickers’ communications discovered that Americans were part of the enterprise, they could use that information as evidence — or as a basis for getting a warrant to search for more of the Americans’ communications.
Nonetheless, the Biden administration has repeatedly refused to discuss serious reform proposals. Instead, it is asking Congress to codify procedural tweaks recently adopted by the FBI, which amount to beefed-up training and oversight for backdoor searches and changes to data systems.
But the FBI’s most recent abuses cap off a 15-year pattern of government violations of the rules designed to protect Americans’ privacy. On multiple occasions, the government has responded to revelations of noncompliance by changing its internal procedures — yet the pattern of violations has continued. Little surprise, then, that some of the FBI’s most concerning abuses of Section 702 — including backdoor searches aimed at a U.S. senator, a state senator and a state judge who reported a local police chief to the FBI for civil rights violations — occurred after the FBI had implemented its procedural changes.
Lawmakers know these changes are insufficient. Many have called for Section 702 to expire. If the administration somehow succeeds in scuttling major reforms, leaving a choice between codifying the FBI’s procedural tweaks or allowing the authority to expire, expiration will be the most likely outcome. Ironically, it is the administration’s hostility to reforms that is putting Section 702 in danger.
Every overdose is a tragedy, and the government should do all it can, acting within our constitutional order, to combat the illegal trafficking of dangerous drugs. But those efforts should not — and need not — come at the expense of Americans’ constitutional rights.
If Section 702’s expiration would leave us “blind” to streams of fentanyl pouring over our borders, then there is an easy solution. The government should agree to reforms, including a warrant requirement for backdoor searches, that protect Americans’ privacy while retaining the government’s ability to pursue those who traffic fentanyl into the United States.
Noah Chauvin (@NoahChauvin) is a counsel in the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.