Originally created to target terrorists, government agents are now using a federal law to spy on American citizens. It is known as section 702 of the Foreign Intelligence Surveillance Act, or FISA, and it’s up for congressional re-authorization this year.
Ohio Rep. Jim Jordan insists Congress must make reforming FISA a top priority. “This is the most important thing we’re probably going to do this Congress,” he said.
By year-end, Congress must decide if it will reauthorize Section 702. The 2008 law allows government agencies to collect specific types of information to protect the nation from terrorism.
Section 702 expires on December 31st and critics say it should be allowed to die because agencies like the Federal Bureau of Investigation have abused the law to spy on average Americans without probable cause.
Here’s how it works: Telecom companies collect data from phone and Internet use. The raw, unredacted information goes into a National Security Agency database. Approximately 10,000 people at the U.S. Justice Department are able to query the database. The Office of the Director of National Intelligence reports that 30% of the 3.4 million queries made in 2021 were in error. A FISA filing unsealed last spring revealed the FBI improperly used warrantless search powers against U.S. citizens more than 278,000 times in the year, ending November 2021.
Florida Rep. Matt Gaetz confronted FBI Director Christopher Wray about those transgressions during a recent congressional hearing.
“The court said it was over 200,000 that have occurred on your watch. Well, do you have any basis to disagree with that assessment?” Gaetz asked Wray.
“Again, I don’t have the number as I sit here right now,” Wray responded.
“What can I say? It’s like, a number you should know – how many times the FBI is breaking the law under your watch,” Gaetz insisted.
The FBI’s illegal searches included queries of January Sixth and George Floyd protests. Agents also performed personal queries without proper authorization. Civil libertarians and members of Congress believe the warrantless searches are unacceptable, and perhaps even criminal violations of American privacy rights.
Sen. Charles Grassley asked Assistant U.S. Attorney General Matthew Olson, “What is the Justice Department doing to punish folks who have already abused FISA?”
Olson replied, “It’s on the spectrum for intentional misuse. Agents and analysts can be fired. In fact, one person was fired for wrongfully violating the rules intentionally, with respect to FISA,” he explained. “But the vast majority of the mistakes we’ve seen are not intentional.”
Intentional or not, Cato Institute Senior Fellow Patrick Eddington believes the government has no business using the FISA law to examine the personal information of Americans without a warrant.
“And so, you had FBI agents going in there and conducting literally millions of searches without any kind of probable cause, and thus, you know, no warrant signed by a federal judge to do it,” he said.
In the case of former Trump campaign official Carter Page, the FISA court issued a warrant after the FBI submitted falsified information. Eddington contends the DOJ has abused the law for at least 15 years.
“We have seen these violations take place virtually since the day this program was started. The Foreign Intelligence Surveillance Court, which is supposed to basically be the body here that prevents this kind of stuff from happening has more often than not simply served as a rubber stamp,” Eddington insisted. “And when they have actually called out FBI and NSA, you know, for violating a court orders, nobody has been sanctioned and nobody has lost their job.”
DOJ Inspector General Michael Horowitz suggested it’s unfair to hold the FISA court and federal prosecutors accountable for evidence withheld by the FBI.
“I’ll just say on the Carter Page FISAs, one of the problems that we found and one of the serious problems we found was the FBI was sitting on information and wasn’t telling the prosecutors,” Horowitz explained during a House hearing.
Rep. Gaetz responded, “If that information was in a civil litigation environment in North Florida, and I was withholding evidence that the other side had a right to, I would expect a judge to sanction me.”
So, what is the solution? Some members of Congress want to do away with FISA altogether, while others feel revising the law would be enough to protect the constitutional right to privacy.
Rep. Jordan believes the solution is straightforward. “The solution is simple, right? Require probable cause if you’re going to query this database on American citizens. How about we just get the FBI out of the business altogether? What if the FBI can’t query this database, you can’t even mess with the pod, the FBI can’t query this database on American citizens? “
U.S. Privacy and Civil Liberties Oversight member Beth Williams responded, “Look, the FBI has a long way to go to regain public trust. And the question is, you know, I think if the FBI is not doing these searches to figure out who in the United States is talking to terrorists abroad, who is going to do it? And so, the concerns are real.”
“Who’s going to do it?” Jordan asked. “We’ve got other agencies that do it already.”
The Office of the Director of National Intelligence reports warrantless searches of electronic data dropped to about 200,000 last year. Still, Eddington believes the government must act soon to stop the further erosion of American civil liberties.
“There’s literally an entire generation of Americans who have grown up essentially under this surveillance state, under this, you know, virtually dystopian, Orwellian, you know, kind of country in that regard. And that has a fundamental warping effect, I believe, on our society, and certainly on the entire concept of the rule of law and individual rights.”
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