Abuses of the FBI’s Authority Under Section 702 of FISA Should Force It to Get a Warrant
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Last month, a new opinion by the Foreign Intelligence Surveillance Court (FISC) revealed that the FBI has continued its pattern of warrantlessly surveilling communications of U.S. persons, including government officials, using Section 702 — a counterterrorism authority originally created to monitor select foreigners abroad.
Section 702, which has spawned mass warrantless surveillance that actually sweeps up large numbers of communications of Americans and other people in the United States, will sunset at the end of 2023 unless its authority is renewed by Congress. During discussions about that renewal, the FBI has downplayed its abuses of Section 702, claiming that internal reform measures have resulted in fewer improper searches for the communications of people in the U.S. — and head off the need for significant reforms by Congress, including a warrant requirement for conducting such searches.
Though the latest set of internal rules announced by the FBI and Department of Justice (DOJ) is intended to address the misuse of Section 702 to surveil people in the U.S., the FBI and DOJ have demonstrably and repeatedly failed to deliver on similar promises over the past decade. Voluntary reforms have simply resulted in continued abuse: In recent years, the FBI has conducted “U.S. person queries” on Black Lives Matter protesters, thousands of political donors, journalists, a local political party, and a Member of Congress. This latest opinion shows that queries in 2022 also targeted a U.S. Senator, an unnamed state Senator, and a judge who complained to the FBI about civil rights violations by a police chief. Despite its resistance to reform, the government has also failed to show any evidence of how new safeguards against abuse would meaningfully undermine the value of Section 702 surveillance.
Jake Laperruque, Deputy Director of CDT’s Security & Surveillance Project, said following the opinion’s release, “One warrantless query for Americans’ private communications is one too many, and this opinion shows the government is still conducting hundreds of thousands per year, including thousands in violation of their own lax rules. These new revelations of misconduct show yet again that lack of oversight invites abuse, and that it’s impossible to fix FISA 702 without adding a warrant rule for U.S. person queries.”
To further prevent misuse of Section 702, CDT calls on Congress to reject the FBI’s assurances, and require that a judge assess whether the FBI has probable cause in each case before the agency is allowed to conduct a query on a U.S. person.
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In Case You Missed It
— On the July 26 anniversary of the Americans with Disabilities Act (ADA), CDT Policy Counsel Ariana Aboulafia and Henry Claypool of the American Association of People with Disabilities wrote a piece for Slate’s Future Tense highlighting how technology perpetuates discrimination in the context of the Medicaid system’s Electronic Visit Verification. Ariana and CDT’s Will Adler also argued in a new blog post that the Election Assistance Commission must collect better data on how people with disabilities vote, to inform policy decisions that balance election security and accessibility for voters with disabilities.
— CDT and numerous other advocacy groups continue to urge Congress not to pass the Kids’ Online Safety Act (KOSA), even as the Senate Commerce Committee voted the bill out of committee on Thursday morning. Our key concerns with KOSA include that it will lead online services to implement age verification, jeopardizing the privacy and safety of all users, and that it will empower state Attorneys General to enforce restrictions on speech that disproportionately affect marginalized groups including LGBTQ+ youth.
— CDT submitted comments responding to the White House Office of Science and Technology Policy’s (OSTP) request for public input on national priorities for promoting the responsible use of AI that serves the public good. We urged the federal government to center civil rights, democratic values, and the public interest in its leadership on AI; model rights-respecting AI practices in its development, procurement, funding, and use of AI; institute formal mechanisms for interagency coordination that support federal agencies’ continued leadership on AI policy; and promote an ecosystem built on robust frameworks and standards for independent and effective audits of AI systems.
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 | Graphic for CDT report, entitled "Sharing the Health: Report – Sharing the Health: Guidance for Schools When Procuring Mental Health Technologies." Illustration of a student wearing a sweater and backpack, against a clear sky background with clouds floating in and out.
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— A recent CDT report offers guidance for schools and districts to understand what to consider as they turn to technology to help them meet students’ needs in light of the urgent youth mental health crisis. While many tech products that vendors offer have the potential to help schools understand, address, and treat student mental health, using technology that is not designed for the education context, ineffective at its stated goals, or insufficiently protective of student privacy could do much more harm than good for students.
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 | Photograph of CDT Policy Analyst Aliya Bhatia, wearing a forest green sweater and in front of a cream door.
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CDT in the Press— “The bill just assumes what’s good for some kids is good for all kids,” Aliya Bhatia, CDT Policy Analyst, told Cyberscoop about the Kids’ Online Safety Act.
— "What the young people in France are doing right now is protesting against state violence, which is a crucial kind of political activity. And so, how social media companies respond in this moment is really influential over people being able to find their political voice. It’s an incredibly difficult line to walk,” Emma Llansó, Director of CDT’s Free Expression Project, told the Associated Press.
— “We do need to get on it. AI is already being used to mediate access to economic opportunities like credit, housing, and employment,” CDT Vice President of Policy Samir Jain told Marketplace about efforts to regulate AI.
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 | Graphic for CDT's 2023 Annual Benefit, Tech Prom. November 2, 2023 at The Anthem in Washington, D.C.
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CDT "in Person"— CDT is pleased to announce our 2023 Tech Prom on Thursday, November 2, 2023, from 6:00–10:00 PM at The Anthem in Washington, D.C. You won’t want to miss it! Join fellow policymakers, educators, civil society advocates, government representatives, corporate partners, and the interested public for an evening of mixing and mingling. Learn more about the event, sponsorship opportunities, and tickets on our Tech Prom event page.
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Partner Spotlight
CDT is proud to partner with the Electronic Privacy Information Center (EPIC) on our work on Section 702 reform and comprehensive federal privacy legislation.
EPIC works to secure the fundamental right to privacy in the digital age for all people through advocacy, research, and litigation. You can learn more about the work they do on their website.
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 | Photograph of CDT Research Fellow Michal Luria, wearing a black sweater and glasses and standing in front of a window with a plant.
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How long have you been working in digital rights? I have been working in digital rights for almost two years. My background is in human-computer interaction and design research, and it has been fascinating to see how this kind of work can inform and contribute to digital rights and policy work.
What is your proudest moment while here at CDT? I recently presented an academic paper at a conference. Shortly after, a researcher I admire whom I have been following for years told me that being a researcher at CDT is her all-time dream job. It made me feel very lucky and grateful to be able to do the research I do here, and to be part of this amazing organization.
What is the best book you've read recently? I recently read Hannah Arendt's Eichmann in Jerusalem, which, like many of her writings, is as relevant as ever to current political events.
What is your fandom? I am obsessed with 90s pop music. Any pop music, actually, but 90s pop music more than anything else. Especially with random, non-single songs from old CDs that nobody remembers.
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