POV: Section 702’s always been rotten. Congress must trash it at expiration

In 2020, after the murder of George Floyd at the hands of Minneapolis Police, hundreds of thousands of Americans risked arrest, taking to city streets crowded with combative police forces and drones. Law enforcement agencies treated these protests against police brutality and systemic racism not only like crime scenes, but also like foreign terrorism investigations. Over the span of 20 days, the FBI searched information collected under Section 702 of the Foreign Intelligence Surveillance Act to dig up the digital data and communications of 133 people arrested at the demonstrations.

This is no anomaly. The FBI has a long history of targeting Black-led movements through various unlawful means. In more recent history, these means have included making use of information that Section 702’s sweeping foreign surveillance procedures “incidentally” collect on U.S. citizens and persons on U.S. soil. Since its adoption in 2008, Section 702 has served as the FBI’s backchannel for warrantless domestic surveillance; the agency conducted as many as 3.4 million searches of American communications in 2021 alone, according to an ODNI report.

The program only permits warrantless searches on individuals if they are non-Americans and located outside of the United States when the communications occur. However, due to the program’s “upstream” and “downstream” data collection procedures and intelligence agencies’ loose understanding of what it means for a query to be reasonably likely to return foreign-intelligence information, the FBI gets away with this pattern and practice of noncompliance. Even worse, it enables the FBI to discretely continue Hoover and post 9/11 era practices of treating immigrants and communities of color like national security threats. AAPI advocates have attested to the chilling, xenophobic effect of this surveillance. As a result of having friends and family who are not naturalized citizens and travel outside the U.S., immigrant communities in the U.S. have long been overrepresented in Section 702 data collection, and thus are disproportionately deprived of their civil liberties. 

Clearly, these undemocratic practices urgently need to be prohibited. With FISA set to expire in 2024, this is possible. There is already strong bipartisan support in Congress for essential reforms that would prohibit warrantless queries of information collected under Section 702 to find communications and other information on U.S. persons and persons on U.S. soil. Despite rallying calls for change, key leadership, including Senate Majority Leader Chuck Schumer, are attempting to sneak the bill into the National Defense Reauthorization Act, a must-pass national defense bill that is drafted in secret proceedings. An even worse version of Section 702, this renewal would make it easier for FBI agents to surreptitiously search for the communications of immigrants seeking asylum or a green card.

Earlier this month, Congress similarly tried to leverage Section 702’s reauthorization against a possible government shutdown, including the controversial legislation in the 2024 spending bill. Fortunately, Section 702 was cut from the spending bill due to pressure from civil rights groups. And advocates are fighting to block it again. In a letter sent earlier this week, the Surveillance Technology Oversight Project (S.T.O.P.) joined our fellow advocates in urging Majority Leader Schumer and Democratic Leader Jeffries to immediately drop Section 702 from the 2024 NDAA. Both leaders must respect our nation’s democratic process and cease their efforts to extend Section 702 without debate or much supported reform.

Sarah Roth is the advocacy and communications associate at the Surveillance Technology Oversight Project.