Section 702 surveillance doesn’t belong in the NDAA

This week, House Speaker Mike Johnson made a decision that imperils the constitutional rights of Americans: he allowed an extension of Section 702 of the Foreign Intelligence Surveillance Act to be attached to the National Defense Authorization Act, or NDAA. By including a Section 702 extension in legislation like the NDAA that passes Congress each year, Speaker Johnson risks short-circuiting the legislative debate around this spying power and the possibility of real, bipartisan surveillance reforms.

Fortunately, it’s not too late for Congress to fix his mistake. Both chambers are voting on the NDAA this week, and there is still time to strip Section 702 out of the bill. Congress shouldn’t extend this sweeping surveillance power absent fundamental reform.

Section 702 is an incredibly controversial surveillance tool, long criticized by Democrats and Republicans alike. Although the law requires the government to direct this surveillance at people outside the United States, in practice, it routinely ensnares Americans. Section 702 allows the government to target any foreigner abroad for warrantless surveillance to obtain “foreign intelligence information.” The government’s targets need not have any connection to criminal activity or terrorism; they can be journalists, human rights workers, or businesspeople communicating about the “foreign affairs” of the United States. In the course of this surveillance, the government vacuums up—without a warrant—the communications of countless Americans who have texted, called, messaged, or emailed any one of hundreds of thousands of foreign targets.

After collecting these communications, the FBI, CIA, and NSA deliberately search through their Section 702 databases—again, without a warrant—to find the communications of Americans they’re interested in. These warrantless queries, also known as “backdoor searches,” are anathema to a free society and violate our bedrock Fourth Amendment rights.

In recent years, FBI agents have conducted millions of backdoor searches for Americans’ communications, transforming Section 702 into a domestic surveillance tool. The agency has warrantlessly searched its databases to find communications of American protestors, racial justice activists, individuals suspected of involvement in the January 6 Capitol breach, 19,000 donors to a congressional campaign, and even members of Congress.

The rules governing this spying are far too weak, and yet we know from government disclosures that the FBI and other agencies have violated these rules tens of thousands of times.

Unsurprisingly, given the shocking breadth and long-running abuses of Section 702 surveillance, legislators from both sides of the aisle support major reforms. The House Judiciary Committee has already marked up an excellent reform bill that protects Americans’ privacy while allowing the surveillance of foreigners abroad to continue. Among other things, this reform bill closes the “backdoor search” loophole. It also prohibits law enforcement from circumventing core constitutional protections by purchasing Americans’ data that they would otherwise need a warrant to obtain.

Section 702 is scheduled to expire on December 31, which is why some lawmakers have made a last-minute push to slip an extension of the law into the NDAA. But that extension is entirely unnecessary because Congress already planned for this scenario. An obscure provision of FISA states that Section 702 surveillance can continue while an existing FISA Court authorization remains in effect—and the FISA Court has authorized Section 702 surveillance until April 11, 2024. Thus, the government will continue to conduct this surveillance for another four months, regardless of whether Section 702 expires. That gives Congress plenty of time—from now until April 11—to consider and enact major reforms, and decide on whether to authorize a longer extension, before the government’s authority lapses.

The biggest problem with the NDAA rider is not that it is unnecessary, but instead that it is a stealth longer-term extension that is dangerous for reform efforts. Although Section 702 supporters claim that the NDAA rider is only a four-month extension of the surveillance law, in practice, it will function as a 16-month extension—pushing this debate off until 2025. That’s because the government is very likely to seek a new annual authorization from the FISA Court in April, giving it another year to conduct surveillance under the same obscure provision in FISA. That’s an unacceptable outcome, particularly when Congress is poised to enact meaningful Section 702 reform after months of public and legislative debate.

If Congress doesn’t strip the NDAA rider, it should—at a minimum—amend the rider to ensure that no FISA Court authorization for Section 702 surveillance extends past April 11, 2024. This simple fix is essential to prevent the NDAA rider from functioning as a 16-month extension. If Congress fails to strip the current Section 702 extension from the NDAA, or fails to prohibit FISA Court authorizations beyond April 2024, the ACLU and several other civil society organizations will oppose the NDAA.

It’s not too late for Congress to do the right thing. The American public deserves better, and Section 702 reform deserves a standalone vote.

Kia Hamadanchy is a Senior Policy Counsel with the American Civil Liberties Union; Ashley Gorski is a Senior Staff Attorney with the American Civil Liberties Union.