FISA should spy on foreigners, NOT Americans.

We are mere hours away from the expiration of Section 702 of the Foreign Intelligence Surveillance Act (FISA) and still the powers that be seem immovable in their demand that the people surrender their liberties in exchange for security. But it is only after liberty withers away that we discover the promises of security were an illusion. Perhaps, to ensure that Americans enjoy both liberty and security, the time has come to institute real reforms to Section 702. Section 702 authorizes the National Security Agency (NSA) to collect the communications of foreigners abroad without a warrant and store those communications in databases that the intelligence agencies can search to combat terrorism. But when foreigners speak with Americans, the communications of Americans are inevitably collected and stored as well. As a result, the FBI, CIA, and other security agencies can rummage through the text messages, emails, and phone calls of Americans without a warrant. The abuse of this authority has been so concerning that even the secretive FISA Court (FISC) stated the government engaged in “widespread violations” of the rules governing searches. Those abuses included searches for the communications of thousands of donors to a congressional campaign, tens of thousands of Americans engaged in “civil unrest,” members of Congress, and multiple government officials, journalists, and political commentators. Since December 2022, the government conducted over 70,000 backdoor searches on Americans. The years-long abuses of this authority are not honest mistakes, but rather evidence of the arrogance that inevitably results when a secretive, one-sided process all but ensures the intelligence agencies will never be challenged. Even as eyes open to the alien nature of a law that so flagrantly tramples on American liberties and momentum grows to reform it, defenders of the deep state spread fear of terrorism that is only kept at bay by Section 702 authorities. The truth is significantly more nuanced. What would a world without Section 702 look like? As Patrick Eddington, a former military imagery analyst with the CIA and now a Senior Fellow at the Cato Institute, states : If Section 702 lapses, the Justice Department and the US intelligence community could still collect foreign intelligence information on foreign entities, including terrorist organizations, through several remaining authorities. Collection under Executive Order 12333 —which governs the bulk of NSA’s overseas foreign intelligence collection—would be entirely unaffected by a §702 lapse, as would traditional FISA Title I individualized warrant-based collection against foreign powers and their agents. Further, a §702 lapse would not immediately end currently authorized §702 collection. The [FISA Amendment Act’s] statutory transition provisions provide that any order, authorization, or directive issued pursuant to Title VII of FISA shall remain in effect until its stated expiration date. Because the FISC authorizes §702 collection annually, the National Security Agency (NSA) and other intelligence agencies can continue acquiring foreign intelligence under any currently valid FISC certification until that certification expires, even if the statute itself has lapsed. The Foreign Intelligence Surveillance Court (FISC) can likewise continue administering previously authorized acquisition procedures during that period. Additionally, Acting Attorney General Todd Blanche would retain authority to conduct warrantless surveillance on an emergency basis via 50 U.S.C. § 1805(e). Under that provision, the Attorney General may authorize emergency electronic surveillance without prior judicial approval where an emergency situation exists and the factual basis for a FISC order exists. However, the Attorney General must notify a FISC judge at the time of authorization and must submit a formal application to the FISC—in no event later than seven days after green-lighting the surveillance. In other words, not much would change as the United States would still be able to use its full might to defend itself. The extensive technologies and strategies of the United States government would still be employed to conduct surveillance to protect Americans. What should change? The government should once again have to get a warrant to surveille Americans. There is not a judge in America who would deny the government a warrant to search an American who is suspected of engaging in or planning terrorist acts. And, in emergency situations, where time is of the essence, a warrant would not even be necessary because the Fourth Amendment protects Americans against unreasonable searches and seizures. The Constitution has enough wisdom in it to promote both liberty and security. In another recent post , Eddington concludes, “ if Section 702 expires for a time, it wouldn’t be the end of FISA. But it would force a badly needed reckoning with its abuses—and provide Congress with time to agree on a bill that would preclude such abuses in the future.” Those of us who support meaningful reform should not be cowed by exaggerated fearmongering. Restoring the Fourth Amendment should not be forsaken by scare tactics. AS SEEN ON X