The Biden administration’s plan to seek court approval to extend the Section 702 of FISA has raised eyebrows — and with good reason.
Last month, when heated debate broke out over whether a warrant should be required to search the vast database of communications collected pursuant to the program, Republican House Speaker Mike Johnson postponed consideration of if its reauthorization.
For those unfamiliar with it this program, originally enacted as part of the FISA Amendments Act of 2008, permits interception, collection, and storage of conversations relating to “foreign intelligence information.” The current reauthorization of the program was smuggled into the annual National Defense Authorization Act in December, and is set to expire in April.
Now that many have come to see Section 702 as an unconstitutional invasion of Americans’ privacy, will Biden’s DOJ try to get away with continuing the program without legislative authorization?
Any attempt to continue a controversial bulk surveillance program, without the authorization of a representative legislative body would contradict our country’s founding principles. Assistant Attorney General for National Security Matthew Olsen stated that the Justice Department’s request was consistent with “standard annual practice” and was necessary to avoid a “dangerous gap in collection.” This merely raises the questions of whether this should be “standard annual practice,” and whether the “gap in collection” should in fact be a complete discontinuation of this immoral and unconstitutional program.
To explain why the House vote was postponed last month, Johnson spokesman Raj Shah tweeted, “In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date.” Judging by the new package then under consideration, “the integrity of our critical national security programs” required not only warrantless collection of innocent Americans’ communications into a vast database, but also warrantless searches of that database. The reforms under consideration were merely window dressing: all they did was limit the number of FBI personnel who could query the database and provide more “oversight” of the process.
Nearly eleven years after Edward Snowden’s revelations in spring of 2013, many Americans have finally come to understand that there is something very wrong with allowing our government to vacuum up our communications and store them indefinitely in a vast database, ready and available for government agents to search at any time — all without probable cause or particularized suspicion. While the recent contentious debate in Congress was over whether a warrant should be required to search the database, there is good reason to object to warrantless collection and storage of the communications as well.
To understand why even collection and storage under Section 702 should require a warrant, we must examine the constitutional legal doctrine on which bulk warrantless surveillance programs have rested for decades: the “third-party doctrine.” This doctrine, as expanded by the Supreme Court in the 1970s, denies Fourth Amendment protection to any information shared with “third parties,” such as your telephone company, bank, or email service provider. No warrant is required when government obtains that information, even if the sharing is only for the purpose of receiving services pursuant to an ordinary legal contract.
Prior to the Supreme Court’s rulings in Smith and Miller, the doctrine had applied only when the information had been shared with a third party as part of a criminal endeavor — involving what the common law would have referred to as an “illegal contract.” In a 2014 law review article, I examined this history, distinguishing the “reasonable expectation of privacy” you and I have when we share information with, e.g., our cellular service provider, from the expectation a Tony Soprano might have when he shares information with a criminal co-conspirator. I concluded that the Supreme Court had gotten it wrong: our expectations of privacy when we share information with third parties should be respected, and the Fourth Amendment warrant requirement should apply when government obtains that information.
Returning now to Section 702, we can see how the issue goes beyond what some refer to as “accidental collection,” collection of conversations exclusively between Americans. I submit that government should not be collecting any American’s side of any conversation — even explicitly authorized “incidental collection” of Americans’ conversations with foreign persons located abroad — on the basis of the targeting standard of Section 702.
It also allows government surveillance of “any foreign person located abroad who is believed to possess ‘foreign intelligence information,'” a concept which is apparently so vital to our national security that its definition is secret. Setting aside the question whether targeting anyone according to this standard is morally justified, does an American relinquish his or her reasonable expectation of privacy, simply for communicating with a person who has been so targeted?
In my view, a proper reform of Section 702 would require not only a warrant to search the program’s database, but also a warrant to collect and store any American’s side of any communication. It’s disheartening that our elected representatives, all of whom have sworn an oath to uphold the Constitution, can’t even seem to agree on a warrant requirement to search a database that shouldn’t even exist. The DOJ’s Olsen, in his statement, describes the Section 702 program as “an indispensable national security tool” and says he’s “committed to working closely with Congress to reauthorize it.” But why should Americans be subdued by appeals to the “national security” of a nation whose leaders no longer respect their fundamental rights?
Amy Peikoff is Chief Policy Officer for BitChute, a video service provider which puts creators first, and facilitates and advances, to the maximum extent possible, our users’ exercise of their fundamental rights. BitChute is committed to fighting hate through debate, rather than resorting to algorithmic manipulation or censorship.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.