A new bill would expand government access to our private communications. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleague Noah Chauvin, counsel in the Brennan Center’s Liberty and National Security Program, to report on a troubling expansion of government surveillance power.

—Michael Waldman

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 direction

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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

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.

By itself, that is an appalling violation of Americans’ privacy rights. But the problem is compounded by “persistent and widespread

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” abuses of this authority, including baseless searches for the communications of racial justice protesters

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, members of Congress

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, journalists

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, crime victims

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, and political donors

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.

Against this background, leading lawmakers from both sides of the aisle vowed

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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

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, 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

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.

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

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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

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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

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that it would retain and use only the messages of its foreign targets. The Biden administration has vowed

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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

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by 76 percent of Americans, but it narrowly failed in the House by a vote of 212–212

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. 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

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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

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on the Senate floor that some parts of RISAA “could have been drafted better” and committed

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to working with his colleagues this summer on improving them. The fight to protect Americans’ privacy rights will continue.





Accountability Is Essential to Democracy

Former President Trump’s criminal charges may be a historic first for the United States, but such prosecutions are not uncommon in the global context. Cases in other countries show that investigations and criminal proceedings against high-profile political leaders shouldn’t be pursued lightly, and they must be conducted transparently and free from political bias. “If done right, however, holding top officials accountable when they commit serious misconduct is a hallmark of liberal democracy and essential for the rule of law,” Ashleigh Maciolek writes. Read more

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Curbing AI-Powered Election Risks

Anyone who wants to interfere in elections today can choose from an arsenal of easily deployable artificial intelligence tools to assist them. As our AI and Democracy series

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shows, this new technology may be used to supercharge voter suppression, disinformation, and other threats to the 2024 elections. The urgency of the situation demands swift action from governments and tech companies alike, including measures to protect voters from deceptive deepfakes and ways to certify and amplify authentic government content. “To fully protect voting and elections, lawmakers must also pass reforms like the Freedom to Vote Act,” Mekela Panditharatne writes in Time magazine. READ MORE

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Downsides of Piecemeal AI Regulation

AI doesn’t just threaten elections — it could also undermine the public’s civil rights, liberties, and privacy protections. In the face of Congress’s failure to regulate AI, both the executive branch and several state legislatures have issued their own rules and guidance to address these new dangers. However, their actions are no substitute for robust federal legislation, Melanie Geller and Julian Melendi argue. “A patchwork of state laws leaves millions of people across the country more vulnerable to the harms and dangers of unregulated AI technologies that can entrench biases, produce discriminatory results, and disproportionately impact communities of color,” they write. Read more

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Arizona’s Ongoing Abortion Fight

Last week, Republican legislators in Arizona blocked a vote to repeal a Civil War–era abortion ban that was revived earlier this month. It’s one of several states where high courts could allow long-dormant abortion laws on the books to be enforced after Dobbs. In a new State Court Report Q&A, abortion law expert David Cohen explains the state of reproductive rights in Arizona, the likely next steps in the court case, and the biggest threats to abortion access nationwide. READ MORE





Coming Up

VIRTUAL EVENT: The High Cost of Public Service

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Tuesday, April 30, 3–4 p.m. ET



While abuse directed at federal officeholders grabs the headlines, a Brennan Center report

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reveals that intimidation aimed at state and local officials is distressingly common. These threats have serious repercussions for representative democracy, as officeholders report being less willing to work on contentious issues like reproductive rights and gun control and reluctant to continue serving. Additionally, intimidation is often targeted at groups already underrepresented in government, such as women and people of color. Join us for a virtual discussion of this alarming trend as well as recommendations to stem the abuse. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Elizabeth Goitein on the expansion of government surveillance // NEW YORK TIMES

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Sean Morales-Doyle on the myth of noncitizens voting // NBC

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Gowri Ramachandran on how abuse of officeholders hurts civic engagement // US NEWS

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Michael Waldman on the Supreme Court and Trump // CNN

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