A Politically Split Congress Can Perhaps Fuel Federal Surveillance Reforms

Part of a law that authorizes warrantless snooping is about to expire, opening up a opportunity to better protect our privacy rights.

The National Security Agency (NSA) is urging Congress to renew its secret surveillance authorities before they expire at the end of the year. Split control of Congress provides an excellent opportunity for lawmakers to take the time to reform these laws so that American citizens have stronger protections from unwarranted snooping that's supposed to only be used to track foreign spies and terrorists.

On Thursday, NSA Director and Army Gen. Paul Nakasone spoke at a virtual panel discussion presented by the U.S. Privacy and Civil Liberties Oversight Board to urge the renewal of "one of the U.S. government's most important intelligence authorities." He's referring to Section 702 of the Foreign Intelligence Surveillance Act (FISA). FISA authorizes the NSA to engage in secret surveillance to keep track of potential foreign threats, overseen by the Foreign Intelligence Surveillance Court, which is supposed to make sure that Americans' Fourth Amendment protections against warrantless snooping are honored.

Or that's the ideal, anyway. In reality, particularly in the wake of 9/11, the NSA has repeatedly been caught secretly collecting and tracking far more domestic data than Americans had been told. Section 215 of the USA PATRIOT ACT, passed in 2001, also fueled the secret collection of Americans' online communications and phone records. The extent of the surveillance was partly exposed by Edward Snowden's leaks in 2013, and since then there's been significant political debate over and some modest reforms of these authorities to better protect Americans' data privacy.

We also can't talk about federal surveillance authorities anymore without talking about the federal investigation surrounding President Donald Trump over whether he or his aides had been compromised by Russian interests on the campaign trail leading up to the 2016 election. We've subsequently learned that the FBI had submitted misleading warrant applications to the Foreign Intelligence Surveillance Court in order to get authorization to wiretap former aide Carter Page. Then we learned that the FBI regularly does a lousy job of properly documenting most of the warrants it submits to the Foreign Intelligence Surveillance Court when asking for permission to snoop on Americans and misuses these authorities to investigate domestic crimes, not foreign espionage.

That surveillance was different from the surveillance authorized by Section 702, but nevertheless, what happened with Page and Trump has caused a greater number of Republicans to be more critical and invested in limiting the power to snoop on Americans. There had always been a handful of Republicans concerned—Sen. Rand Paul (R–Ky.) regularly drew attention to the Fourth Amendment issues at play when Barack Obama was president and long before Trump ever decided to run. But many Republican lawmakers prior to Trump were happy cheerleaders for NSA surveillance, as were many Democrats. There was a small core of bipartisan opponents and critics, but they were typically greatly outnumbered by supporters.

Trump changed that math, and ultimately that's good for American citizens. Trump is, however, part of the reason why Section 702 is still a problem. Despite expressing anger on Twitter about FISA surveillance and the snooping of his staff, he and Republicans nevertheless approved the renewal of these Section 702 authorities in early 2018. In the process, Trump and his Republican allies rejected a bunch of proposed reforms, including one requiring warrants to access any data the NSA incidentally collects from Americans.

But by the end of Trump's term, he was less willing to support the surveillance status quo. As data collection authorities permitted by the USA Freedom Act (which replaced the surveillance authorities once granted by the USA PATRIOT ACT) were set to be renewed in 2020, Trump threatened to veto a renewal bill. Again, some reforms had been proposed but then blocked by the Senate that would have better protected Americans from secret surveillance. But once Trump made his threat, Republicans who had previously voted for renewal changed their stance, and, suddenly, it didn't have enough votes to pass at all. Those authorities ended up sunsetting.

And so, then, the current lack of trust in government and the polarized relationship between the two parties actually makes the prospect of further reforms more possible than it might have been before. Because political party control over both the House and Senate is so narrow, that bipartisan group demanding reform has more power to stop renewal if reforms don't happen. Negotiation may be necessary.

"The American people and indeed people all around the world have lost the ability to have a private conversation over digital networks," Cindy Cohn, executive director of the Electronic Frontier Foundation, said during the panel discussion. Now is a great time to amend Section 702 to make sure that Americans have the proper protections against warrantless federal surveillance.