Liberty Exposé: The State of Surveillance
The relationship between governed and government has always been transactional in nature. Legislation is passed, taxes are levied, infrastructure is built, representatives are elected, and the cycle of mutual exchange goes round and round. Individual authority is relinquished for an overarching order that, with some exceptions, provides a governing framework beneficial to all parties involved in the social contract. Citizens pledge their allegiance to the flag, and in return, the government upholds the inalienable rights of “Life, Liberty, and the pursuit of Happiness” for every American.
Any agreement between two parties, political or otherwise, is defined by boundaries. Lines are drawn in the constitutional sand, regulating the proper role of government and safeguarding the liberties of the governed. These distinctions separate protection from intrusion, necessary authority from unnecessary overreach. But sometimes these boundaries are blurred, and once incontrovertible constitutional doctrines are reinterpreted in order to meet the demands of a “greater good”. Often without the consent, or knowledge, of those on the receiving end of governance.
National security, and the lengths to which the federal government will go to preserve it, has long served as a primary justification for such reinterpretations. A government undoubtedly has a duty to ensure the sovereignty of its borders and citizens, but what happens when the constitutional liberties they are sworn to defend are placed on the back burner in service to the “greater good”? What happens when an individual’s privacy and personal freedom is cast aside for matters of national security?
Questions like these embody the contentious struggle sweeping Capitol Hill, where despite fierce debate and opposition from an unlikely Republican bloc, the House recently voted to extend Section 702 of the Foreign Intelligence Security Act (FISA) for another three years. Detractors of Section 702 extension aren’t opposed to securing American safety, they’re opposed to legislation that provides an avenue for the warrantless searching of American’s private data and the blatant disregard of Fourth Amendment rights. Lacking any provisions safeguarding against the warrantless surveillance of American citizens, and containing a ban on Central Digital Banking Currency (CDBC), the legislation faces an uphill battle within the Senate before a decision must be reached by the April 30th deadline.
Meanwhile, President Trump lobbies for a quick and clean resolution, but amidst constituent and Congressional backlash, reauthorizing any unreformed Section 702 amendment may drive a wedge between an already splintering MAGA coalition.
Section 702
Originally established in 1978, FISA created “procedures for physical and electronic surveillance and collection of foreign intelligence information.” Section 702 was not implemented until later, during a post-911 era where “many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies.” Congress responded by passing the FISA Amendment Acts of 2008, allowing for “the collection, use, and dissemination of electronic communications content stored by U.S. internet service providers” to analyze “foreign intelligence information about national security threats.”
When Section 702 was amended into FISA in 2008, Congress included within the bill’s language a sunset clause, requiring Congressional reauthorization of the surveillance authority and laying the framework for further adaptation of Section 702. Since the initial reauthorization in 2012, each subsequent amendment of Section 702 has carried with it a potential expiration date and the need for legislative renewal, the most recent extension granted through the Reforming Intelligence and Securing America Act (RISAA) of 2024.
Sunset clauses aren’t the only shared feature of every Section 702 amendment, as each revalidation has been headlined with claims of constitutional controversy. Section 702 may have been enacted with all the good intentions of acquiring foreign intelligence, but the law’s practical application presents a much more complicated reality. For while the statute is designed to target non-U.S. foreign agents, the scope of the surveillance authority results in “collecting information on Americans emailing, texting, or calling the non-U.S. persons the agencies target.” The private phone calls, texts, emails, and other electronic correspondences of American citizens may be warrantlessly obtained alongside the data of foreign nationals and stored for an indefinite period of time.
But the loudest criticism arises from what is done once this data is obtained. Federal agencies, such as the FBI, NSA, and CIA, are able to conduct queries into Section 702 databases and “conduct literally thousands of these warrantless ‘backdoor searches’ (which the government calls “U.S. person queries”) each year.” The FBI alone conducted “200,000 backdoor searches” in 2022 and more than 57,000 in 2023, despite previous Congressional measures to limit the retention and querying of private American data by intelligence agencies.
Congress hasn’t remained silent to both public and political outcry against Section 702 privacy violations and government intrusion into the personal lives of American citizens. The 2024 reforms within RISAA addressed oversight and query concerns, but, according to the Brennan Center for Justice, were “carefully crafted to preserve the status quo.” No provisions implicitly requiring a warrant for the seizure and search of American’s private data were established by RISAA. Neither is any language found within the recent Section 702 measure approved by the House. It now falls to the Senate to decide the surveillance status quo.
Watching Without Warrant
Ultimately, the debate over Section 702 is a debate about the Fourth Amendment. Although smartphones and laptops weren’t in Colonial fashion for our Founders, the language still holds as a self-evident truth in the 21st Century. Americans have a constitutional protection against unreasonable search and seizure, even in the electronic ether of the digital age. The government shouldn’t be allowed to sidestep Fourth Amendment warrant requirements to expedite national security. Nor should they be able to bypass the Fourth Amendment rights of the American people by buying their data from the highest bidder. Referred to as the “data broker loophole”, this process allows government agencies and local law apparatus to “warrantlessly buy information about the location and internet activity of people in the U.S” when Section 702 fails to meet their surveillance needs.
Whether through Section 702 or data broker loopholes, federal agencies consistently used information gathered through warrantless backdoor searches for the criminal investigation and prosecution of American citizens. Evidence obtained without a warrant is generally subject to the “exclusionary rule” and inadmissible in criminal trials, yet the American Civil Liberties Union (ACLU) attests “‘backdoor searches’ can be used to prosecute Americans for crimes, even if they are not related to national security.” The FBI employed Section 702 databases for the surveillance of communities of color and protestors, and Section 702 derived information was used in the 2015 wrongful prosecution of Xiaoxing Xi. A Chinese-American physics professor, Xi was arrested at gunpoint in front of home and family, and although accusations were dropped shortly after, the first-generation immigrant’s 2021 Congressional testimony painted the dark possibility that “any scientist of Chinese descent may get the knocks at his or her door by FBI agents and be snatched away.”
These federal transgressions of Fourth Amendment rights are constitutional infringements numerous Republicans have and continue to oppose. Surprisingly, the current Commander-In-Chief was once lockstep with political privacy hawks, if not the most vocal opponent of Section 702 reauthorization. Prior to RISAA passage in 2024, Trump expressed his personal distaste for Section 702 through an evocative TruthSocial post. Reverberating Trump’s at-the-time FISA frustration was Speaker of the House Mike Johnson (R-LA.), stating, “Of course, they abused FISA.” before assuring that RISAA “reforms would actually kill the abuses that allow President Trump’s campaign to be spied on.”
Now Trump has mandated nothing less than a “clean 18-month extension” of Section 702, and Johnson’s multiple attempts at reauthorization and constant campaigning for hardliner support was a key element in the legislation passing by a House vote of 235-191. It would appear that for Johnson and Trump, matters of national security and administrative interests have overshadowed any former concerns of surveillance superseding constitutional liberties.
But is the rest of the country as eager as the President to forfeit their “Rights and Privileges” for the greater good of American national security? The Republican leaders who initially rebelled against Section 702 reauthorization don’t seem to be, and neither do the 22 Republicans who stood with 169 Democratic colleagues appear to be in favor of sacrificing their constitutional liberties. This small bloc of the GOP echoes public resentment of Section 702 authority, with a recent poll from Demand Progress indicating only 17% of Republican voters think Congress should reauthorize Section 702 without meaningful reform of warrantless surveillance.
Regardless of whether or not the Senate ratifies Section 702 reauthorization by April 30th, it falls to Republican lawmakers to stand with likeminded Democratic peers in bipartisan support to finally amend Section 702 with the necessary reforms to prevent the warrantless acquisition of citizen’s private data. After all, any approved version of Section 702 will contain a sunset clause, so there’s always another congressional chance waiting ahead.
