While the goal of Section 702 was to facilitate monitoring of foreign agents, terrorists, and intelligence operatives abroad, its lax rules open the door to abuse through mass targeting of innocent people who are in no way suspected of wrongdoing or connected to malicious activities by foreign powers. There are two clear paths of action for Congress to narrow permissible 702 targets. First, it could require that, whenever targets are designated for the purpose of collecting information related to foreign affairs, there must be reasonable suspicion that those targets are agents of a foreign power. Alternatively, Congress could establish a reasonably narrowed set of purposes for which the government can designate FISA Section 702 targets, similar to those found in last fall’s Executive Order on signals intelligence. If the executive believes it can meet operational needs while voluntarily adhering to these limits, it should have no objection to them being codified into statute.
Another key area of reform is to close the backdoor search loophole, which enables the government to co-opt Section 702’s warrantless surveillance authority to deliberately seek out Americans’ communications for generalized domestic surveillance. The government can — and frequently does — query databases of FISA Section 702-acquired communications to deliberately seek out these Americans’ conversations absent judicial oversight or suspicion of wrongdoing. The way to prevent abuse of backdoor searches and improper treatment of Americans’ private communications is to have a strict and consistent warrant rule. Congress should not reauthorize FISA Section 702 without establishing a rule that all U.S. person queries of Section 702-acquired data must be predicated on probable cause (either that the query will return evidence of criminal wrongdoing or that the applicable person is an agent of a foreign power) and approved by the FISA Court.
Unfortunately, the concerns outlined above are not theoretical. This past May, disclosures confirmed that the FBI, which has already been under scrutiny for a litany of past compliance violations involving Section 702, engaged in improper searches for Americans’ communications targeted at political activities and actors, including 19,000 donors to a congressional campaign, as well as over 100 civil rights protesters demonstrating in 2020 after police killed George Floyd. This shocking example of “defensive searches” should end the discussion of whether any type of “defensive search” exception is safe or acceptable.
