Foreign Intelligence Authority Used to Spy on Americans
NSA Collects Massive Amounts of Americans’ Data Using This “Foreign Intelligence” Authority
Section 702 prohibits the government from intentionally targeting Americans — either directly or indirectly — or through “reverse targeting.” Nonetheless, in the course of surveilling hundreds of thousands of foreign targets, the NSA “incidentally” collects millions of communications to or from Americans who have done nothing to merit suspicion, let alone warrantless surveillance in violation of their Constitutional right to privacy.
Such “incidental” collection and search does not mean “accidental” — in fact, intelligence agencies have searched communications and other information acquired under Section 702 using the names of people in the United States millions of times. This overreach into Americans’ private lives is one reason why federal agencies are lobbying hard for this law to stay on the books without reforms.
FBI Abuses Section 702 Access to Conduct Warrantless Domestic Surveillance
The FBI routinely conducts warrantless searches of Section 702 databases for Americans’ communications, turning a foreign intelligence program into a tool for domestic surveillance. Recent FISA Court opinions and government audits have revealed, for example, that the FBI has conducted these “backdoor searches” for information on:
Oversight Mechanisms Fail to Protect Americans
Executive Branch oversight mechanisms and court rules have failed for more than 18 years to rein in the government’s gross violations of the Fourth Amendment and the limits Congress set in enacting Section 702. The program has been plagued since its inception by instances of systemic non-compliance — by the FBI, NSA, and CIA — with the rules designed to protect Americans’ privacy.
Section 702 prohibits the government from intentionally targeting Americans — either directly or indirectly — or through “reverse targeting.” Nonetheless, in the course of surveilling hundreds of thousands of foreign targets, the NSA “incidentally” collects millions of communications to or from Americans who have done nothing to merit suspicion, let alone warrantless surveillance in violation of their Constitutional right to privacy.
Such “incidental” collection and search does not mean “accidental” — in fact, intelligence agencies have searched communications and other information acquired under Section 702 using the names of people in the United States millions of times. This overreach into Americans’ private lives is one reason why federal agencies are lobbying hard for this law to stay on the books without reforms.
FBI Abuses Section 702 Access to Conduct Warrantless Domestic Surveillance
The FBI routinely conducts warrantless searches of Section 702 databases for Americans’ communications, turning a foreign intelligence program into a tool for domestic surveillance. Recent FISA Court opinions and government audits have revealed, for example, that the FBI has conducted these “backdoor searches” for information on:
- A sitting U.S. congressman, a local political party, and other political officials;
- Journalists and political commentators;
- Individuals working with the FBI to build better community relations through its Citizens Academy, as well as college students participating in a Collegiate Academy; and
- Victims approaching the FBI to report a crime, repairmen, FBI colleagues, and family members.
Oversight Mechanisms Fail to Protect Americans
Executive Branch oversight mechanisms and court rules have failed for more than 18 years to rein in the government’s gross violations of the Fourth Amendment and the limits Congress set in enacting Section 702. The program has been plagued since its inception by instances of systemic non-compliance — by the FBI, NSA, and CIA — with the rules designed to protect Americans’ privacy.
How to reform section 702
Close the Backdoor Search Loophole with Warrants for Americans’ Communications:
Congress must protect constituents by passing a warrant requirement for Section 702 searches of Americans’ communications. We cannot continue to allow a foreign intelligence surveillance tool to be turned against our own citizens.
Close the Data Broker Loophole – Require Warrants for Federal Agencies to Buy Americans’ Digital Data:
Congress can also add a warrant requirement to the federal government’s purchase and review of Americans’ sensitive personal data – curbing the data-broker loophole and ending the routine warrantless inspection of Americans’ highly personal geolocation, internet search history, and internet communications data.
Adopt the Rubio-Warner Fix – End the “Make Everyone a Spy” Provision:
Congress can curb the definition of “electronic communication service provider” under FISA to exclude countless small businesses and houses of worship from being forced by the NSA to assist in spying on customers and congregants. These entities were inadvertently pulled in when the definition was expanded in 2024.
When this measure was passed, a solemn promise was made by senators to fix it, restricting this authority to one category of ECSP providers, believed to be data centers. It is time to keep this promise to the American people.
Require Advocates for the American People in Secret Courts:
Congress can prevent political abuses in FISA Title I cases by including the formerly titled “Lee-Leahy Amendment” in Section 702 reauthorization. This measure, which passed the Senate in 2020 with 77 votes, would mandate the inclusion of a qualified third-party amicus with expertise in the Fourth Amendment, and holding a high-level clearance, to advocate for the American public in secret FISA court proceedings that implicate American political leaders and other sensitive matters.
Include Language from the NDO Fairness Act:
The government can currently impose a gag order on telecom and digital companies, keeping these companies’ customers from learning that their sensitive, personal information has been surveilled by the government.
The House has already passed the NDO Fairness Act, which curbs the widespread practice of keeping thousands of Americans not suspected of wrongdoing in the dark about government snooping into their most sensitive, personal information – including communications that concern their health, financial transactions, and personal relationships. This measure would require courts to more heavily scrutinize gag order requests, and require notice to be given to customers soon after expiration of the order, with reasonable exceptions.
End DOJ’s Obstruction of Members of Congress’ Access to the FISA Court:
Congress should also stop the Department of Justice from obstructing Members of Congress’ access to the FISA Court, in violation of RISAA. RISAA included key reforms to allow better congressional oversight of the FISC, but through rules put in place by the Biden Administration (and continued in the Trump administration) the DOJ has flagrantly violated Section 5(d) of RISAA and put in place restrictions that have no grounding in the statute.
Congress must protect constituents by passing a warrant requirement for Section 702 searches of Americans’ communications. We cannot continue to allow a foreign intelligence surveillance tool to be turned against our own citizens.
Close the Data Broker Loophole – Require Warrants for Federal Agencies to Buy Americans’ Digital Data:
Congress can also add a warrant requirement to the federal government’s purchase and review of Americans’ sensitive personal data – curbing the data-broker loophole and ending the routine warrantless inspection of Americans’ highly personal geolocation, internet search history, and internet communications data.
Adopt the Rubio-Warner Fix – End the “Make Everyone a Spy” Provision:
Congress can curb the definition of “electronic communication service provider” under FISA to exclude countless small businesses and houses of worship from being forced by the NSA to assist in spying on customers and congregants. These entities were inadvertently pulled in when the definition was expanded in 2024.
When this measure was passed, a solemn promise was made by senators to fix it, restricting this authority to one category of ECSP providers, believed to be data centers. It is time to keep this promise to the American people.
Require Advocates for the American People in Secret Courts:
Congress can prevent political abuses in FISA Title I cases by including the formerly titled “Lee-Leahy Amendment” in Section 702 reauthorization. This measure, which passed the Senate in 2020 with 77 votes, would mandate the inclusion of a qualified third-party amicus with expertise in the Fourth Amendment, and holding a high-level clearance, to advocate for the American public in secret FISA court proceedings that implicate American political leaders and other sensitive matters.
Include Language from the NDO Fairness Act:
The government can currently impose a gag order on telecom and digital companies, keeping these companies’ customers from learning that their sensitive, personal information has been surveilled by the government.
The House has already passed the NDO Fairness Act, which curbs the widespread practice of keeping thousands of Americans not suspected of wrongdoing in the dark about government snooping into their most sensitive, personal information – including communications that concern their health, financial transactions, and personal relationships. This measure would require courts to more heavily scrutinize gag order requests, and require notice to be given to customers soon after expiration of the order, with reasonable exceptions.
End DOJ’s Obstruction of Members of Congress’ Access to the FISA Court:
Congress should also stop the Department of Justice from obstructing Members of Congress’ access to the FISA Court, in violation of RISAA. RISAA included key reforms to allow better congressional oversight of the FISC, but through rules put in place by the Biden Administration (and continued in the Trump administration) the DOJ has flagrantly violated Section 5(d) of RISAA and put in place restrictions that have no grounding in the statute.
THE AMERICAN PEOPLE WANT REFORM
- A bipartisan poll shows that 76 percent of Americans support a warrant requirement for government inspection of Americans’ communications under 702.
- Eighty percent believe Congress should pass a law requiring a warrant before the government can purchase and access our sensitive personal digital information.
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