This past week, quickly and with little public awareness, Congress markedly expanded government’s power to snoop on its citizens. At a time of worry about privacy, government overreach, and “the Deep State,” this was action, motivated by expediency, that ignored public concerns.
Section 702 of the Foreign Intelligence Surveillance Act lets the government collect the private communications of non-Americans located outside the United States without a warrant. The law aimed to make it easier for intelligence agencies to spy on foreign terrorists. But the communications of Americans who call, email, and text people outside the country are sometimes collected too — even though the government would normally need a warrant to access them.
Despite a congressional directive to “minimize” retention and use of that information, agencies such as the FBI, CIA, and NSA have crafted court-approved rules that let them search Section 702 databases for the communications records of Americans. These agencies perform more than 200,000 of these warrantless “backdoor” searches for Americans’ private communications every year.
By itself, that is an appalling violation of Americans’ privacy rights. But the problem is compounded by “persistent and widespread” abuses of this authority, including baseless searches for the communications of racial justice protesters, members of Congress, journalists, crime victims, and political donors.
Against this background, leading lawmakers from both sides of the aisle vowed not to reauthorize Section 702 when it expired on April 19 without “significant reforms.” But the bill Congress sent to President Biden in the early hours of Saturday morning, the Reforming Intelligence and Securing America Act, or RISAA, all but ensures that abuses will continue by codifying the status quo.
One empty gesture at reform is a prohibition on the FBI performing backdoor searches intended solely to uncover evidence of a crime unrelated to national security. In 2022, a year in which the FBI performed 204,090 backdoor searches, this provision would have stopped it from accessing the contents of Americans’ communications in just two instances.
The bill would also codify the FBI’s existing rules governing backdoor searches, which are demonstrably inadequate to prevent abuses. Even after those rules were adopted, FBI employees still performed around 4,000 improper backdoor searches a year, including on a U.S. senator, a state senator, and a state court judge who reported civil rights violations to the FBI.
Given the repeated abuses of this authority to spy on Americans, the failure to adopt meaningful (and popular) reforms is baffling. But Congress went even further, enacting changes that expand warrantless surveillance.
Most concerning is a change expanding the types of companies the government can compel to hand over communications under Section 702. Under RISAA, virtually any American business that provides its customers with Wi-Fi, from commercial landlords to laundromats, could be compelled to give the NSA access to communications that travel through its routers. And because these businesses generally lack technical expertise, they will be forced to give the NSA wholesale access to their equipment, relying on nothing but the NSA’s word that it would retain and use only the messages of its foreign targets. The Biden administration has vowed to interpret this provision narrowly, but that promise is not binding — and a future president could revoke it.
Members of Congress, recognizing the problem of being spied on, carved out special protections for themselves. The FBI would have to obtain their consent prior to performing certain backdoor searches for their communications. Congress did not extend this protection to ordinary Americans.
Fortunately, there is reason to hope that reformers will eventually carry the day. A bipartisan amendment to RISAA would have required the government to get a warrant before performing backdoor searches. This measure is supported by 76 percent of Americans, but it narrowly failed in the House by a vote of 212–212. Some members who have been vocal about the risks of authoritarianism opposed this amendment even though RISAA would hand future presidents a powerful tool for abuse. And efforts to improve the bill in the Senate fell short, not because members were substantively opposed to reforms but because they feared amending the bill would let Section 702 temporarily sunset while the House approved the changes.
RISAA will fail to prevent the worst abuses of Section 702, and it grants new spying powers to agencies that have not demonstrated an inclination to wield them responsibly. But changes could come soon. RISAA only extends Section 702 by two years, meaning the next Congress will have the opportunity to remedy this one’s errors. And Sen. Mark Warner, chair of the Senate’s intelligence committee, acknowledged on the Senate floor that some parts of RISAA “could have been drafted better” and committed to working with his colleagues this summer on improving them. The fight to protect Americans’ privacy rights will continue.
