How Congress can end the era of warrantless spying on Americans

In mid-December, Congress approved a temporary extension of Section 702 of the Foreign Intelligence Surveillance Act, which was due to expire on Dec. 31. By mid-April, Congress must decide whether or not the provision should be reauthorized. 

This controversial law was meant to allow the government to collect foreign communications but has been repeatedly used to spy on Americans. 

Congress must not extend Section 702 without substantial reforms, including a requirement that the government get a warrant before using the law to read Americans’ private communications. It can do that by passing the bipartisan Protect Liberty and End Warrantless Surveillance Act, or the Protect Liberty Act. 

Introduced by Reps Andy Biggs (R-Ariz.) and Jerry Nadler (D-N.Y.), the surveillance reform bill would plug the “backdoor search” loophole — and end many other abusive spying practices, too.  

The dangers created by warrantless surveillance are real. 

Intelligence officials have abused Section 702 to perform baseless and unlawful backdoor searches for the private communications of, among others, crime victims, 19,000 donors to a congressional campaign, members of Congress, journalists, two men of “Middle Eastern descent” based on a witness claiming they were moving boxes of Drano, and 141 individuals protesting George Floyd’s murder. 

In a recent one-year period, “non-compliant queries related to civil unrest numbered in the tens of thousands.”  

Section 702 allows the government to warrantlessly collect the communications of non-Americans located overseas. However, our communications get collected too because we have friends, family and colleagues located abroad, with whom we communicate for wholly innocent purposes. But if one of our correspondents is a target of Section 702 surveillance, the government can collect our conversations with them.  

Once these private phone calls, instant messages and emails have been collected, intelligence agencies search through them without a warrant, even when they are knowingly looking for dirt on Americans. Since Section 702 was enacted, intelligence and law enforcement agencies have performed millions of these warrantless backdoor searches for our private communications.  

Approximately 60 percent of Asian Americans are immigrants — that is, born in a different country. Accordingly, most Asian Americans will have close ties to family members and friends located abroad and are therefore more likely to be swept up in 702 collections as well as be subject to backdoor searches. That’s why a coalition of 63 Asian American and allied organizations, led by Asian Americans Advancing Justice, where one of us is the president and executive director, and others, recently called on Congress not to reauthorize Section 702 without crucial reforms.  

It’s no accident that so many abuses of Section 702 raise civil rights concerns. When intelligence and law enforcement agents have nearly unfettered discretion to decide who to spy on, they invariably decide to surveil minorities and vulnerable groups. There is a simple solution that would prevent these abuses: If intelligence agencies want to spy on Americans, they should have to get a warrant, as one of us told colleagues in Congress a decade ago.  

Some members of Congress have proposed legislation that would expand surveillance without preventing the worst abuses of Section 702. Fortunately, the Protect Liberty Act provides a better option. Not only would it require a warrant for searches of Americans’ communications collected under Section 702, but it would also prevent the government from buying people’s private communications and location information without a warrant and enhance surveillance transparency, accountability and oversight.    

The American people deserve better than another decade’s worth of surveillance abuses, but that’s what we’ll get if the harmful bills championed by the congressional intelligence committees — both known as the FISA Reform and Reauthorization Act — become law. 

It’s imperative that Congress get this right before extending Section 702, and that points to only one path: the Protect Liberty Act.  

Mark Udall represented Colorado in the U.S. Senate from 2009 to 2015.  He is a senior adviser to the Project for Privacy and Surveillance Accountability.  

John C. Yang is the president and executive director of Asian Americans Advancing Justice –AAJC.