Surveillance Without Representation

In December, Congress rushed through a National Defense Authorization Act which included a short-term reauthorization of Section 702 of the FISA Amendments Act of 2008. Section 702 permits warrantless interception, collection, storage, and searching of communications related to “foreign intelligence information.” At the time, Senator Mike Lee warned that the reauthorization, although set to expire next month, would permit the program to continue until April 2025. It seems he was right.

Last month, when the House was considering a new package for reforming Section 702, heated debate broke out over whether a warrant should be required to search the vast database of communications collected pursuant to the program. Republican House Speaker Mike Johnson abruptly postponed consideration of the bill, his spokesman tweeting, “In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date.” Judging by the bill then under consideration, the integrity of our critical national security programs requires not only warrantless collection of innocent Americans’ communications into a vast database, but also warrantless searches of that database. The proposed reforms were merely window dressing, limiting the number of FBI personnel who could query the database and providing more “oversight” of the process. 

One might think that the continuation of a controversial bulk warrantless surveillance program, without the express authorization of a representative legislative body, would be contrary to our country’s founding principles. But Section 702 provides for just such a loophole, allowing the program to continue during the duration of annual orders from the court, even if the underlying statutory authorization has expired. Assistant Attorney General for National Security Matthew Olsen stated that the Justice Department’s request was consistent with “standard annual practice” and was necessary to avoid a “dangerous gap in collection.” But should this be “standard annual practice”? Now, nearly eleven years after Edward Snowden’s revelations in spring of 2013, many Americans have come to believe that the “gap in collection” should in fact be a complete discontinuation of this immoral and unconstitutional program.

No longer subdued by the pablum that if they have nothing to hide, they shouldn’t be concerned about invasions of their privacy, many Americans realize that there is something very wrong with allowing our government to vacuum up our communications and store them indefinitely in a vast database, ready and available for government agents to search at any time—all without probable cause or particularized suspicion. While the recent contentious debate in Congress was over whether a warrant should be required to search the database, there is good reason to object to warrantless collection and storage of the communications as well.

To understand why even collection and storage under Section 702 should require a warrant, we must examine the constitutional legal doctrine on which bulk warrantless surveillance programs have rested for decades: the “third-party doctrine.” This doctrine, as expanded by the Supreme Court in the 1970s, denies Fourth Amendment protection to any information shared with “third parties,” such as your telephone company, bank, or email service provider. No warrant is required when government obtains that information, even if the sharing is only for the purpose of receiving services pursuant to an ordinary legal contract. 

Prior to the Supreme Court’s rulings in Smith and Miller, the doctrine was applied only when the information had been shared with a third party as part of a criminal endeavor—involving what the common law would have referred to as an “illegal contract.” In a 2014 law review article, I examined this history, distinguishing the “reasonable expectation of privacy” you and I have when we share information with, e.g., our cellular service provider, from the expectation a Tony Soprano might have when he shares information with a criminal co-conspirator. I concluded that the Supreme Court had gotten it wrong: our expectations of privacy when we share information with third parties should be respected, and the Fourth Amendment’s warrant requirement should apply when government obtains that information.

Returning now to Section 702, we can see how the issue goes beyond what some refer to as “accidental collection”, collection of conversations exclusively between Americans. I submit that government should not be collecting any American’s side of any conversation—even explicitly authorized “incidental collection” of Americans’ conversations with foreign persons located abroad—on the basis of the targeting standard of Section 702. That standard explicitly permits surveillance of “any foreign person located abroad who is believed to possess ‘foreign intelligence information.’” “Foreign intelligence information” is a notoriously broad concept which is apparently so vital to our national security that its definition is secret. Set aside for now the question whether targeting anyone according to this standard is morally justified. Should an American be deemed to have relinquished his or her reasonable expectation of privacy, simply for communicating with a person who has been so targeted?

In my view, a proper reform of Section 702 would require not only a warrant to search the program’s database, but also a warrant to collect and store any American’s side of any communication. It’s disheartening that those who have sworn an oath to uphold the Constitution, those with the power to reform this unconstitutional program, seem resigned to allowing it to continue for another year. Rumor has it that there aren’t enough votes for a warrant requirement, even to search the database. But we can’t know for sure, as our elected representatives have chosen the cowardly, well-worn path of concealing their true position by attaching a program to a “must-pass” piece of legislation, hoping to avoid accountability for just one more election cycle.  

UPDATE: Check out this article at the Wall Street Journal, explaining how our government has been using our tax dollars to purchase troves of private data about us and our activities. This is something that some representatives had planned to reform, along with Section 702. But at the moment, that seems unlikely.