Yesterday, OpenTheGovernment joined a coalition of civil rights, privacy rights, and civil liberty organizations calling for Congress to support reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA) to prevent the FBI and domestic law enforcement agencies from engaging in unlawful surveillance of U.S. persons. Section 702 currently gives the FBI access to the NSA’s massive database of phone calls, e-mails, and other electronic communications—collected without search warrants—amplifying existing concerns that communities of color, religious minorities, and activists are targets of fishing expeditions by U.S. law enforcement.
The history of the FBI’s unlawful targeted surveillance programs underscores the need for urgent oversight and transparency measures to deter government overreach. The FBI’s use of unconstitutional surveillance programs to target civil rights leaders and anti-war activists in the 1960s-70s is a core reason behind the original passage of the FISA. The problem of unlawful surveillance continues today, reflected in recent trends of law enforcement targeting of Muslim communities, Movement for Black Lives leaders, and protest organizers.
Despite its stated purpose to combat foreign threats and international terrorism, the government interprets Section 702 to permit the FBI to deliberately seek out, without a warrant, communications of U.S. persons, a problem commonly referred to as the “backdoor search loophole.” Broad access to this data also leads to the practice of “parallel construction,” where law enforcement agencies launch criminal investigations based on evidence collected via the 702 database, then recreate the investigative trail to cover up the origin of this information. This practice exacerbates concerns that U.S. law enforcement is targeting vulnerable communities and unlawfully using warrantless information in domestic criminal investigations.
Reforms to Section 702 are needed to limit sharing of national security information with domestic law enforcement to prevent this authority from being used to target certain groups and stifle dissent. The letter urges the House Judiciary Committee to support reforms that would: require a judicial warrant for Section 702 U.S. person queries to close the backdoor search loophole; limit all law enforcement use of Section 702 by federal, state, and local entities to foreign intelligence purposes; and ensure that proper notice is given to defendants when law enforcement uses Section 702 data. The letter also recommends additional transparency and oversight measures to enable the public to evaluate the effectiveness of Section 702 programs, and to ensure impacted individuals can legally challenge any unconstitutional surveillance conducted under its authority.
“The broad use of warrantless surveillance authorities by the FBI and domestic law enforcement continues to be a matter of serious concern,” according to Lisa Rosenberg, Executive Director of OpenTheGovernment. “Congress must demand greater transparency to ensure that upcoming reforms to Section 702 restore our constitutional protections and privacy rights.”
Read the letter here.