We Still Don't Know the Full Extent of the Government's Warrantless Electronic Spying Program

The reauthorization of Section 702 is one of the most important issues facing Congress in the second half of this year.

Fifteen years after Section 702 was first authorized by Congress as a tool for foreign surveillance, there's never been an accounting of how many Americans have had their electronic communications scooped up.

Even attempting to calculate such a figure "would not be feasible," Sharon Bradford Franklin, chair of the Privacy and Civil Liberties Oversight Board, an independent executive branch agency responsible for advocating on behalf of Americans' rights in national security matters, told a House committee during an April hearing.

Franklin said the extent of that so-called incidental collection matters, "because the greater the number of Americans who are directly affected, the greater the need for Congress to ensure the safeguards throughout the 702 program are sufficient." In fact, she told the committee, the very notion of "incidental" collection is a bit of a misnomer. It is illegal for intelligence agencies to use Section 702 to deliberately spy on Americans' communications, but any message sent to someone in another country is fair game.

"Thus, incidental collection is a feature of Section 702 and not a bug," Franklin concluded.

The future of this incidental-but-intentional snooping on Americans' emails, texts, and phone calls is one of the most important questions facing Congress in the second half of this year. Authorization for Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires in December. While it will almost certainly be renewed in some form, the process offers a rare opportunity for Congress to change the program's rules to better protect Americans' civil liberties—and there might be bipartisan support for doing so.

When Section 702 was approved in 2008, it removed older provisions of the FISA law that required the government to obtain a warrant from the special FISA court before wiretapping communications between Americans and foreigners. Agencies must obtain permission from the FISA court before conducting any surveillance, but the court effectively rubber-stamps all requests and does not review specific targets.

As a result, "vast quantities of our communications are still searched and amassed in government databases simply because we are in touch with people abroad," explains the American Civil Liberties Union (ACLU). There are at least two National Security Agency (NSA) programs—PRISM and Upstream—that rely on Section 702 surveillance. And, again, so many data are vacuumed up that the government's official position is that it's impossible to meaningfully quantify it, as Franklin testified in April.

Sarah Taitz, a national security fellow at the ACLU, says all that supposedly incidental collection of Americans' data is a "bait-and-switch" because "the FBI routinely exploit this rich source of our information by searching those databases to find and examine the communications of individual Americans for use in domestic investigations."

We do know how often that happens, thanks to an annual report published by the Office of the Director of National Intelligence (ODNI). In 2021, for example, the FBI used its FISA powers to run more than 3.3 million queries through the Section 702 database.

The FBI reported a dramatic drop in the number of warrantless Section 702 searches in 2022. The ODNI's most recent transparency report shows that the FBI made 204,090 queries of the Section 702 database last year. The sharp decline is attributed to several policy changes implemented by the FBI during the second half of 2021 and into early 2022, including new rules limiting when investigators can access the Section 702 databases.

Even after that significant decline, however, the overall use of Section 702 for warrantless domestic spying seems to be on the rise. In 2013—the first year the government released this transparency report, in response to the outrage generated by Edward Snowden's leaks about the NSA's spy programs—there were only 89,138 targets for Section 702 collections. The most recent report shows that there were 246,073 targets in 2022.

More foreign targets of Section 702 spying likely means more "incidental" collection of Americans' communications and larger databases. The FBI's declining use of those databases is a welcome development—one that suggests reforms aimed at tightening how this information is used can be implemented without jeopardizing national security. But it is also something of a red herring, given that the extent of what's being vacuumed up by Section 702 remains unknown.

"Given the rate at which the number of Section 702 targets is growing, it's likely that the government today collects over a billion communications under Section 702 each year," writes Taitz.

There's also evidence that the FBI improperly used Section 702 databases to spy on Americans involved in the George Floyd protests, the January 6 riot, and in less high-profile situations. A Foreign Intelligence Surveillance Court report unsealed in May showed that the FBI improperly used its warrantless search powers more than 278,000 times during 2021—before the FBI's internal policies were changed.

All these numbers are somewhat head spinning. Tens of thousands of foreign targets, leading to hundreds of thousands or even millions of warrantless searches every year through the potentially billions of intercepted communications. Whether any particular target or search might be justified, the aggregate numbers point to an inescapable conclusion: that the federal government is operating a massive domestic spying regime with little oversight and no meaningful concern for Americans' constitutional rights.

And unlike in 2018—when then-President Donald Trump grouched about FISA and the "deep state" but then signed the bill reauthorizing all this anyway—there might actually be a serious attempt at reform. On Tuesday, a group of six Republican lawmakers led by Rep. Matt Gaetz (R–Fla.) and including Rep. Thomas Massie (R–Ky.) introduced a resolution calling for Congress to allow FISA to expire at the end of the year.

"The blatant misuse of warrantless surveillance powers targeting Americans' communications should not be accepted or reauthorized," said Gaetz in a statement. "We must uphold national security without sacrificing the constitutional rights of our fellow Americans." In an interview with Fox News on Tuesday, Gaetz said he hoped to work with "civil libertarian-minded progressives" on the issue.

Meanwhile, in the Senate, some Democrats have expressed opposition to a speedy reauthorization of FISA and Section 702. Sen. Dick Durbin (D–Ill.), chairman of the Senate Judiciary Committee, said in June that he would "only support the reauthorization of Section 702 if there are significant—significant—reforms. And that means, first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment."

Whether politicians as different as Gaetz, Massie, and Durbin can patch together a coalition that agrees on how to reform (or abolish) Section 702 remains to be seen. It's probably right to be skeptical.

Still, 15 years after Congress first authorized the warrantless spying program and a decade after Snowden revealed the ways in which Americans were being targeted by it, it's encouraging to see that reauthorization will not be rubber-stamped. At the very least, Congress ought to demand to know the full extent of Section 702 snooping—and their constituents ought to demand changes.