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FISA Section 702 debate: National security or invasion of privacy?

Will Congress end surveillance powers as FISA Section 702 nears expiration, sparking debate over its national security implications?
FISA Section 702 debate: National security or invasion of privacy?
Posted at 1:03 PM, Aug 12, 2023

A controversial law involving government surveillance has been thrust into the spotlight as it is set to expire at the end of this year.

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, allows the government to surveil foreign nationals living outside the U.S. without a warrant, including any American citizens they happen to communicate with.

The Biden administration has called for the renewal of Section 702, albeit with some reforms.

The administration called it "one of the intelligence community’s most effective and powerful tools."

"Information obtained under Section 702 has contributed to counterterrorism efforts like eliminating Al Queda’s leader from the battlefield; it’s contributed to understanding illicit fentanyl flow into the country; it’s helped uncover Russian atrocities in Ukraine," said Joshua Geltzer, Deputy Homeland Security Advisor and White House National Security Council.

While the intelligence community and lawmakers on intelligence committees have voiced support for the law, the opposition has been growing and is now largely bipartisan.

That’s partly due to Section 702 recently drawing ire from several GOP lawmakers.

"It has used FISA, specifically Section 702, to spy on Americans to violate the Fourth Amendment, and conduct warrantless searches," said Rep. Andy Biggs.

"There is no way Republicans in Congress are going to be re-authorizing FISA in its current form," Rep. Jim Jordan.

So how did this once popular bill—which 70% of Congress had supported—develop a broad coalition of opposition?

SEE MORE: Officials want stricter limits on how the FBI uses foreign spy data

Section 702 was first created in the years following the September 11th terrorist attacks, with widespread support for increasing the government’s ability to surveil for national security.

Ironically, then-Senator Joe Biden voted against the bill.

"The mood of our country is there's a terrorist around every corner. How do we deal with this?" said Justin Daniels, Author of "Data Reimagined" and Lawyer at Baker Donalson. "But like a lot of things, there are some unintended consequences.

But the GOP began to shift against Section 702 following recent controversies involving surveillance of the Trump Administration, January 6th rioters, and Black Lives Matter protestors.

"That view has come around from being law and order to really, hey, we can't trust the FBI and some of these government organizations to do this for the proper purpose," said Daniels.

An Inspector General report found many errors and invalid searches ordered on Donald Trump campaign aide Carter Page when the FBI was investigating alleged ties to foreign powers.

According to a court order, the FBI conducted more than 278,000 improper searches in 2020 and early 2021.

According to an AP-NORC poll in June, 48% of respondents believed it was necessary to sacrifice some freedoms to prevent terrorism. That’s a steady drop from 54% in 2021 and nearly 66% in 2011.

But the most notable drop was among the GOP's support for foreign surveillance. Only 44% of Republicans now say it is "sometimes necessary," compared to 69% in 2011.

In its defense, the FBI has stated that the agency made changes to Section 702 to curb the abuses.

The office points to the plummet of FBI searches as a result: searches for citizen data dropped 94% between November 2021 and November 2022, according to a report from the Director of National Intelligence.

"I think our view is that this provision is just too important to fail," said Geltzer.

Throughout the history of the controversial bill, one can see the changing attitudes of Americans and lawmakers toward government surveillance in the name of national security.

Time will tell if any reforms and new restrictions are enough to renew Section 702 once again when the vote comes up for Congress at the end of the year.

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