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Mass warrantless surveillance runs rampant, thanks to Section 702. Key Democrats want to make the problem even worse

Under Section 702, agencies are allowed to pull up Americans’ private messages, effectively morphing the provision into a tool for domestic spying.

Senator Mark Warner of Virginia speaks during the Senate Democrats’ weekly news conference in the Capitol on Tuesday, December 5, 2023. [Photo: Bill Clark/CQ-Roll Call, Inc via Getty Images]

With less than a year to go before the 2024 election, Democratic leaders and pundits are constantly telling us that we are facing unprecedented threats to our democracy. They frame the stakes of the election as a last stand against authoritarian takeover. 

They’re not wrong about the threat. But some Democrats in Congress are recklessly pushing into the hands of the next president the renewal of dangerous spying powers that even the Foreign Intelligence Surveillance Court admits are already abused on a “persistent and widespread” basis. This type of mass surveillance power is dangerous in the hands of any president—but they would be a nightmare in the hands of someone like Donald Trump.

Congress is currently debating whether to extend or rein in a highly controversial warrantless surveillance authority—FISA Section 702—that is set to expire in just a few weeks.  It authorizes surveillance of international communications on a massive scale, populating a database of billions of conversations, including with an unknown number of Americans (the government refuses to admit how many). And it doesn’t stop there.

The FBI, CIA, and NSA are also allowed, under Section 702, to conduct “U.S. person queries” to pull up Americans’ private messages and other information, effectively morphing the provision into a tool for domestic spying. This all occurs without any warrant or court approval—and it happens over 200,000 times per year.

The lack of judicial oversight has caused misconduct to fester. In recent years, these warrantless backdoor searches have been abused to deliberately seek out the communications of over 100 of Black Lives Matter protesters, a batch of 19,000 donors to a political campaign, journalists, members of Congress, and even online dating matches. There are thousands of these violations every year. 

Fortunately, the law’s scheduled sunset provides a crucial opportunity for major reform. Millions of Americans from across the political landscape are calling for strong privacy protections for Americans against government surveillance, and Congress has focused, in particular, on a number of key reforms, most notably closing this backdoor search loophole and stopping the government from buying sensitive information about people in the United States through data brokers, which circumvents our Constitutional and statutory rights. 

Two bills are worthy of their overwhelming, bipartisan support: the Government Surveillance Reform Act and the House Judiciary Committee-passed Protect Liberty and End Warrantless Surveillance Act, which are led by long-time privacy champions, including Senator Ron Wyden of Oregon and Representatives Pramila Jayapal of Washington State, Zoe Lofgren of California, and New York State’s Jerry Nadler, all Democrats. Both bills give the government the spying powers it’s demanding that Congress reauthorize, but both also protect Americans’ privacy.


But some Democrats are actively working to stymie this effort: Senate Intelligence Chair Mark Warner of Virginia and House Intelligence ranking member Jim Himes of Connecticut. In a mind-bending dereliction of duty, the “widespread” abuses of Section 702, which even the government admits to, are specifically excluded from their legislation, the misleadingly named FISA Reform and Reauthorization Act. By their logic, these abuses are tolerable and don’t merit an independent check before agents search for our most sensitive information. They’re wrong, and they’re trying to make the problem a lot worse: In turns out that the House’s FISA Reform and Reauthorization Act would actually dramatically expand, not rein in, Section 702: 

According to one of the small number of hand-picked expert advisors to the FISA Court, this bill would turn “business landlords, shared workspaces, or even hotels” into brand-new vectors for this mass warrantless surveillance. This is a shocking dereliction of duty from the House Intelligence Committee and it’s Democratic leader, ranking member Himes.  

A lot of people of a lot of stripes, including members of Congress, want reform and see this as a once-in-a-generation opportunity to get something done. What the handful of powerful Democrats who oppose privacy protections don’t seem to realize, or at least won’t admit, is that they are paving the way for those same abuses to occur in the future, thousands of times, without any court oversight. Or, somehow, they believe the government’s opposition—that it’s hard to justify to a court how often it spies on Americans, even though it does more to support the need for reform than anything else.

If either the FISA Reform and Reauthorization Act or this cynical NDAA play become law, it will guarantee that the next president—whomever that may be—has control over a wildly invasive mass surveillance apparatus that reaches into Americans’ most sensitive information and is, as we well know, ripe for abuse. 

It is a betrayal for any Democrat to support reauthorizing Section 702 without demanding reforms that end mass warrantless surveillance. Considering this powerful law has already been abused for spying on protestors, journalists, and even agents’ romantic interests, reauthorizing it without major reform is an intolerable risk—the kind that brings down democracies. 

Evan Greer is an activist, writer, and musician based in Boston. She’s the director of digital rights group Fight for the Future, and writes regularly for outlets like the Washington Post, Wired, and Time.


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