[Despite FISA Section 702’s stated use for foreign intelligence,
it has become a tool of domestic surveillance and led to repeated
violations by the intelligence community and misuse of Fourth
Amendment-protected private communications. ]
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THE FOREIGN INTELLIGENCE SURVEILLANCE ACT AND THE WARRANTLESS
COLLECTION OF PERSONAL DATA  
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Mariam Malik
December 5, 2023
Progressive Caucus Center
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_ Despite FISA Section 702’s stated use for foreign intelligence,
it has become a tool of domestic surveillance and led to repeated
violations by the intelligence community and misuse of Fourth
Amendment-protected private communications. _

,

 

INTRODUCTION

Spying has been a practice of the U.S. government since its inception.
Gathering intelligence is justified because it helps uncover malicious
actions that could endanger the safety of Americans and people around
the world. However, in many instances intelligence is gathered
unlawfully on individuals who have no harmful intentions and in
violation of Americans’ Fourth Amendment right to privacy. This
explainer breaks down the various illegal spying practices the U.S.
conducts and the reforms needed to ensure constitutional integrity. 

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

The Foreign Intelligence Surveillance Act
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the rules for the collection of foreign intelligence by the U.S.
government, including critical rules that protect or compromise
Americans' privacy. It first became law in 1978, but since then, it
has been amended multiple times to enable greater domestic
surveillance
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SECTION 702

Section 702
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of FISA was enacted in 2008. It allows intelligence agencies, such as
the Federal Bureau of Investigation (FBI), the Central Intelligence
Agency (CIA), the National Security Agency (NSA), and the National
Counterterrorism Center (NCTC), to search through billions of
warrantlessly acquired international communications. These agencies
target non-U.S. persons (meaning non-U.S. citizens or residents)
outside the U.S. and compel electronic communications companies, such
as Google and Verizon, to turn over these individuals’
communications. Because we live in a globalized world, many
Americans’ Fourth Amendment-protected conversations are swept up
“incidentally.” This information includes emails, text messages,
and internet data
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In 2013, 89,138
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individuals were targeted under Section 702 (Figure 1). In 2022,
246,073
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people were targeted. Hundreds of millions
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communications continue to be collected each year.

FIGURE 1

Reformers have focused on the CIA, FBI, NSA, and NCTC’s practice of
knowingly searching through this staggering amount of warrantless
surveillance, specifically looking for information about U.S. persons
(U.S. citizens and legal permanent residents) who are protected from
illegal surveillance, even when located abroad. U.S. Privacy advocates
call this the "backdoor search loophole
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In 2022, intelligence agencies conducted over 200,000
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of these “backdoor searches.” The FISA Court revealed that the FBI
engaged in “persistent and widespread
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violations when conducting these backdoor searches.

The Section 702 database has been used to search the communications
of:

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A sitting Member of Congress
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and a sitting Senator
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141 Black Lives Matter
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protesters.

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19,000
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individuals who donated to congressional campaigns.

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Journalists
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Individuals whom eyewitnesses called “tips” on because they were
of “Middle Eastern
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descent.

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A state court judge
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who reported civil rights violations to the FBI.

Despite Section 702’s stated use for foreign intelligence, it has
become a tool of domestic surveillance
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and led to repeated
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violations by the intelligence community and misuse
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of Fourth Amendment-protected private communications. SECTION 702 IS
SET TO EXPIRE ON DECEMBER 31, 2023. REAUTHORIZING IT PROVIDES CONGRESS
AN OPPORTUNITY TO REFORM THESE UNCONSTITUTIONAL PRACTICES. Because
Section 702 certifications are issued annually, current surveillance
practices will continue until April 10, 2024, even if Congress does
not act.

OTHER SURVEILLANCE PRACTICES

In addition to Section 702, other surveillance practices lead to the
warrantless collection of Americans’ private data. 

EXECUTIVE ORDER 12333

Executive Order (EO) 12333 allows the government to spy on foreign
individuals, organizations, and other entities abroad. Like Section
702, this inevitably collects private information on Americans, given
our interconnected world. This means there are similar backdoor
searches conducted under EO 12333 as under Section 702. The CIA
operates bulk collection
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programs under EO 12333, which includes gathering Americans’
financial transactions
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and other private information
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DATA-BROKER LOOPHOLE

The Data-Broker Loophole
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allows the U.S. government to purchase Fourth Amendment-protected data
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such as phone call records, internet activity, location information
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and other electronic data, directly from data brokers, which are third
parties that harvest data from communications and technology companies
such as Verizon, AT&T, and Meta. Congress prohibited these companies
from directly selling this sensitive data to the government in the
Electronic Communications Privacy Act [[link removed]].
Additionally, the Supreme Court ruled in Carpenter v. United States
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that a warrant protects some of this data. However, no court is
involved in authorizing or overseeing these purchases. Agencies such
as the FBI
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DHS
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(including CBP and ICE), and DOD
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are purchasing this data on an enormous
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scale. 

Congress took a meaningful step to address the warrantless purchase of
Americans’ data in the Fourth Amendment Is Not For Sale Act
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It prevents government agencies from purchasing Americans’ data from
communications and technology companies. It unanimously passed the
House Judiciary Committee on July 19, 2023. House Floor consideration
is pending. A companion bill
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has been introduced in the Senate.

JUDICIAL PROCESS

Three main issues
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exist concerning the judiciary’s role in protecting Americans’
constitutional rights against illegal government surveillance.

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THE FISA COURT: The FISA Court operates in secret and generally only
hears from government lawyers. The participation of other lawyers, or
amici, is extremely limited, meaning there isn’t a lawyer who raises
issues with or questions FISA Court proceedings or rulings.
Additionally, amici don’t have access to the same information as
government lawyers, making it difficult for them to appeal decisions.

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CIVIL LAWSUITS: Plaintiffs are required to prove definitely that the
government surveilled and gathered data on them. Because foreign
intelligence surveillance is conducted entirely in secret, obtaining
this proof is virtually impossible. This effectively ensures that
plaintiffs don’t have the standing
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to sue. Even if individuals can prove they have standing (i.e., they
have definitive proof the government spied on them), FISA Courts could
reject a case claiming it involves “state secrets
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CRIMINAL LAWSUITS: The government is legally required
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in criminal cases if it intends to use evidence obtained under Section
702. However, this practice has not occurred in the past five years
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To avoid providing this notice, one practice the government conducts
is “parallel construction
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Agencies gather evidence by searching the Section 702 database but
then go back and recreate an alternative source of the evidence to
evade FISA’s notice requirement.

THE GOVERNMENT SURVEILLANCE REFORM ACT

The Government Surveillance Reform Act
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(GSRA) is a bicameral, bipartisan bill that reforms provisions of
FISA, Section 702, and other surveillance practices. Notable reforms
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include:

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Closing the “backdoor search loophole” by requiring law
enforcement and intelligence agencies to obtain a warrant before
searching through Americans’ communications that were obtained
without a warrant under Section 702 or EO 12333. There are exceptions
to this, including:

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When an agency receives consent from the individual, for instance if
someone has been targeted by a foreign actor.

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Emergencies, such as if a person’s life is at risk.

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Cybersecurity-related searches for malware. 

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Closing the “data broker loophole
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meaning agencies can’t bypass Constitutional and statutory
safeguards by purchasing private data directly from data brokers and
would instead have to obtain court orders.

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Providing a larger role for amici
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courts, such as allowing them to appeal FISA court decisions and
ensure they have access to the same information as government lawyers.

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Making it easier for individuals to have standing to sue if they
believe they have been improperly surveilled. 

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Ensuring defendants in criminal cases receive notice if an agency will
use information derived from Section 702.

The GSRA was introduced on November 7, 2023, by Rep. Warren Davidson
(R-OH-08), Rep. Zoe Lofgren (D-CA-18), Sen. Ron Wyden (D-OR), and Sen.
Mike Lee (R-UT). While committee or floor activity has not been
scheduled, the House Judiciary Committee is expected to consider the
legislation soon.

 On November 16, 2023, the Republican majority of the House Permanent
Select Committee on Intelligence (HPSCI) released a report
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proposing legislation that fails to address the well-documented abuses
of Section 702 and would also expand warrantless surveillance in
several ways. One of the many concerning HPSCI provisions
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would allow government agencies to search through Section 702
databases for the communications of non-U.S. persons (including those
legally in the U.S.) applying for a green card, visa, asylum, or other
immigration benefit—with zero suspicion that they pose a threat to
national security. 

The GSRA would enact much-needed reforms to the government’s
warrantless surveillance practices. Still, additional reforms
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are needed, such as narrowing the scope of non-U.S. persons the
government can target. Right now, government agencies can collect data
and surveil virtually anyone in the world due to FISA’s overly broad
definition of “foreign intelligence.” Individuals who have no
connection to malign foreign actors should not be targeted for
surveillance.

PROTECT LIBERTY AND END WARRANTLESS SURVEILLANCE ACT

On December 4, 2023, Congressman Andy Biggs (R-AZ-05) introduced the
Protect Liberty and End Warrantless Surveillance Act
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(PLEWSA). This legislation, like the GSRA, would require government
agencies to obtain a warrant before searching through Section 702 data
to obtain information on U.S. persons. The PLEWSA would also reform
the FISA courts and includes the Fourth Amendment Is Not For Sale Act
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which would close the data-broker loophole for location and other
sensitive information. THE PLEWA IS EXPECTED TO BE MARKED-UP
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BY THE HOUSE JUDICIARY COMMITTEE ON DECEMBER 6, 2023. Bipartisan
cosponsors are; Rep. Jim Jordan (R-OH-04), Rep. Jerry Nadler
(D-NY-12), Rep. Pramila Jayapal (D-WA-07), Rep. Warren Davidson
(R-OH-08), Rep. Sara Jacobs (D-CA-51), and Rep. Russell Fry (R-SC-07).

CONCLUSION

While FISA serves a key purpose in helping  gather intelligence on
threats to people in the U.S. and around the world, many surveillance
practices under FISA violate Americans’ right to privacy. The GSRA
would protect Americans’ private information from warrantless
collection under Section 702 and EO 12333, prevent the lawless
purchase of sensitive information from data brokers, and more. 

_THE CONGRESSIONAL PROGRESSIVE CAUCUS CENTER THANKS THE BRENNAN CENTER
FOR JUSTICE, DEMAND PROGRESS, AND ELECTRONIC PRIVACY INFORMATION
CENTER FOR THEIR COMMENTS AND INSIGHTS WHICH CONTRIBUTED TO THIS
EXPLAINER._

_Mariam Malik,, Senior Foreign Policy Associate, joins the CPC Center
from the U.S. House of Representatives' Committee on House
Administration, where she assisted the committee with its work related
to election administration, voting rights, and election security. _

_The Congressional Progressive Caucus Center brings together community
leaders, researchers, movement organizations, and the public to
develop people-led, cutting-edge policy ideas to address the economic
inequity and systemic racism that the pandemic has laid bare._

* FISA
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* Surveillance of Citizens by Government
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* 4th Amendment
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