In 2008, a bipartisan Congress took a sledgehammer to the Constitution. The FISA Amendments Act codified what the Bush administration had been doing illegally after 9/11: collecting Americans’ international communications data on a massive scale, without anything resembling individualized suspicion of a crime, let alone a warrant.
With Congress’s blessing, the National Security Agency siphoned user data from the servers of tech giants like Apple, Google, and Facebook under a program called PRISM; for data in transit between servers, it used a method called upstream collection. What the NSA amassed, it could share with other intelligence agencies, including the FBI. Armed with a few keywords, the FBI could query a database of unfathomable and ever-growing size, bypassing the centuries-old warrant requirements that are a basic bulwark against tyranny. The statutory authority that the new law created for the NSA’s surveillance panopticon is known as Section 702, for its place within the 1978 Foreign Intelligence Surveillance Act.
Section 702 is among the enduring abuses of the War on Terror: Fifteen years on, the FBI is using the post-9/11 surveillance apparatus against constitutionally protected demands to end institutionalized racism. A partially declassified order from the secret surveillance panel known as the FISA Court recently revealed that the FBI used 702 to spy on the racial justice demonstrations of summer 2020. There should be no future for Section 702 after this latest lesson in how the War on Terror empowered the most noxious currents in American history.
According to Rudolph Contreras, the presiding judge of the FISA Court, the FBI sifted through NSA troves for information on 133 people arrested “in connection with civil unrest and protests between May 30 and June 18, 2020”—the first wave of demonstrations responding to the police murder of George Floyd. Recall that during that period, then-President Donald Trump and Bill Barr, his attorney general, ordered the FBI-led Joint Terrorism Task Forces to target the protests. Contreras’s ruling points to how deeply the FBI complied.
The bureau’s database queries, according to Contreras, were performed “without ‘any specific potential connections to terrorist-related activity’ known to those who conducted the searches.” The Justice Department conceded that the searches were unlikely to return evidence of either “foreign intelligence information or…a crime”—that is, any authorized purpose for the FBI to perform the queries. Yet the bureau argued that the queries fell within its mandate “simply because they pertained to persons who had been arrested and therefore reasonably believed to have committed an offense.”
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Section 702 demonstrates how US intelligence agencies seized the opportunity the War on Terror provided to remove restrictions Congress imposed after the exposure of COINTELPRO, the FBI’s unrestrained surveillance program on nonwhite and left-wing organizations it considered terrorists during the Cold War, and other abuses. Using 702 to spy on the Black Lives Matter movement is just the bureau coming full circle.
And if its assertions about the legitimacy of fishing for “counterterrorism derogatory information” on Black Lives Matter protesters are absurd on their face, it’s because the FBI has gotten away with violating Americans’ rights so frequently that it doesn’t need to be rigorous. Since the passage of Section 702, the FBI has been permitted to unilaterally and warrantlessly search through the NSA’s vast and growing databases of ostensibly foreign intelligence for Americans’ communications data. Ron Wyden, an Oregon Democrat on the Senate Intelligence Committee, calls this the “backdoor search provision.” The Justice Department and the FBI have used this backdoor-search information in criminal trials but have made minimal disclosures of the practice; such an acknowledgment of the use of inadmissible surveillance could undermine convictions. For nearly a decade after the creation of Section 702, the FBI did not document how many times it had performed such searches. Contreras revealed that as of 2021, at least one 702 database used by US intelligence still “lacks the capability” to determine whether queries have been made about US persons.
On a single day in December 2017, the FBI conducted 6,800 inappropriate searches of the NSA database using Social Security numbers, according to FISA Court Judge James Boasberg. Not that his finding prompted change. Contreras referred to “the FBI’s pattern of conducting broad, suspicionless queries” of the 702 database, which he said numbered “in excess of 278,000 noncompliant FBI queries” over an unspecified period.
And the FBI’s warrantless searches targeted not only Black Lives Matter protesters but also January 6 insurrectionists—another cohort with no apparent connection to the foreign intelligence purpose that ostensibly undergirds Section 702. When the FBI is conducting illegal searches on opponents of white supremacy and people who wear Auschwitz merch, it speaks to how normalized those illegal searches have become.
Similarly, the problem with Section 702 is broader than the FBI. In 2011, after learning that the NSA intercepted tens of thousands of “wholly domestic communications,” FISA Court Judge John Bates complained about “the third instance in less than three years”—that is, since the creation of Section 702—“in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” Boasberg, in 2019, blasted the NSA for “unilaterally deciding” to violate “its current targeting procedures” for siphoning data from the Internet. Yet the FISA Court’s objections amount to little. Contreras is just the latest judge to express dissatisfaction before signing off on the 702 procedures.
Section 702 expires this year. After this latest disclosure, the left and right can surely agree that it should die an unmourned death. All Congress has to do is do nothing.
But the intelligence agencies are going all out to save what the NSA director, Gen. Paul Nakasone, in January called an “irreplaceable” authority. Nakasone talked about 702’s “unique” capabilities for surveillance on Russia and China, as “our focus has shifted from counterterrorism to strategic competition.” The rationales change; the surveillance remains.
Violations that have become routine over 15 years cannot be chalked up to “compliance issues,” as Contreras unfortunately put it. The 9/11 era cannot truly end while its surveillance panopticon survives.
