Opinion: Why Americans should be frightened about Congress’ surveillance reauthorization

Editor’s Note: Nafees Syed is an attorney and former congressional staffer in Washington, DC. Kamel El Hilali, Ph.D, is a legal scholar based in Paris. Both are fellows at the Information Society Project at Yale Law School. The opinions expressed in this commentary are their own. View more opinion on CNN.

The Reforming Intelligence and Securing America Act (RISAA) passed by Congress last month did anything but reform a system that subjects Americans to unconstitutional government surveillance.

Referring to vast amounts of metadata such as phone records that include non-targeted persons, the recent Annual Statistical Transparency Report published by the Office of the Director of National Intelligence (ODNI) stated that “bulk collection is not permitted” under Section 702 of the Foreign Intelligence Surveillance Act (1978), also known as FISA. However, the law, as reauthorized in April, does just that.

The Senate passed RISAA by a considerable margin (60-34) barely before the midnight deadline on April 19. President Joe Biden swiftly signed the reauthorization of key intelligence surveillance powers. The vote occurred after intense deliberation and congressional division regarding how to reform Section 702, which permits US intelligence agencies to collect communications data from certain targeted foreigners located outside the United States, but in practice allows intelligence agencies to spy on Americans.

The Federal Bureau of Investigation (FBI), National Security Agency (NSA) and other intelligence agencies can conduct “backdoor” searches on Americans if they have communicated with or if their information is referenced by a so-called targeted “foreign person.” We also know from several nonprofit organizations that purely domestic communications are being collected under FISA Section 702. The US government has conducted millions of such queries on Americans over the years.

Despite the scandal caused by these practices, the existence of irrefutable evidence known to Congress and criticism from former — and possibly future — President Donald Trump, a Republican House and Democratic Senate decided to extend Section 702 without protecting Americans from unconstitutional surveillance.

Congress refused to include safeguards in the FISA amendment bill advanced by the House Judiciary Committee and the House Intelligence Committee, like requiring intelligence agencies to obtain a warrant to query communications of US persons (with exceptions for emergencies) and prohibiting intelligence agencies from buying your data from Amazon, Apple, Google, Meta, Microsoft and other commercial data brokers. The House passed the Fourth Amendment is Not for Sale Act, which would ban intelligence agencies from buying data, and sent the bill to the Senate last month.

A broad coalition of civil society organizations, such as the ACLU, the Brennan Center for Justice, the Electronic Privacy Information Center (EPIC) and Electronic Frontier Foundation (EFF) have strongly opposed RISAA, with EFF correctly noting that the law “does everything BUT reform Section 702.”

RISAA has the potential to exacerbate the surveillance situation for Americans in two ways. The law expands the definition of “electronic communication service provider” to any service provider “who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”

While the law includes exemptions for some public facilities, such as restaurants and community centers, the number of businesses and entities that offer a Wi-Fi connection means that intelligence agencies may compel places such as airports, train stations, transport companies (trains, subways, buses) and shopping malls to convey their customers’ communications data to intelligence agencies upon presentation of a directive requiring them to cooperate.

This provision transforms a law intended to target non-US persons abroad into a domestic surveillance tool. FISA Title I protects US persons (defined as a US citizen, corporation, permanent resident or unincorporated association with a substantial number of US citizens or permanent residents) from unlawful surveillance by requiring the government to show probable cause before the Foreign Intelligence Surveillance Court (FISC), but Title VII, which contains the controversial Section 702 under which warrantless surveillance is conducted, does not. This law proves that the dichotomy between domestic and national intelligence is artificial since data flows have no borders and are collected regardless of nationality.

This law therefore leaves Americans without the strong protections of FISA Title I and worsens their privacy and free-speech rights under the law and constitution. Trump’s recent call to “KILL FISA” is not a stupid idea from a constitutional rights protection perspective, and especially the First Amendment.

Despite the First Amendment, Congress proves once again unable to refrain from making laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” Indeed, in spite of the multitude of evidence that protesters, journalists and members of Congress have had their communications data searched under FISA Section 702, lawmakers decided to ignore their constitutional duty to protect Americans.

This is not merely hypothetical. We know today on the basis of Foreign Intelligence Surveillance Court decisions and the 2023 Privacy and Civil Liberties Oversight Board (PCLOB) report that constitutionally protected activities such as attorney-client communications, peaceful protests and political campaign donations are being monitored, along with activities of racial and religious groups. The FBI conducted thousands of searches on people involved in civil unrest, social advocacy and government criticism, including Black Lives Matter protesters and protests related to the events of January 6, 2021, according to the PCLOB report, which highlights just a few examples we know of in a surveillance regime shrouded in secrecy.

As a selling point for warrantless surveillance of Americans’ communications, WIRED reported that House Intelligence Committee Chairman Mike Turner, an Ohio Republican, used pro-Palestinian protesters in the US as an example of movements that could be harmful to national security by alleging ties to Hamas. FISA Section 702, as extended by RISAA, would blatantly violate the First Amendment if applied as the congressman suggested. (Committee spokesperson Jeff Naft said the presentation was intended to show that protesters would not be a “target” under Section 702 even if there were Hamas connections in the movements.)

When groups are initially targeted because of their speech, this causes a chilling effect on free speech and association throughout society. The chilling effect can lead to the downfall of a democratic and republican form of government. Under the Section 702 expansion, all Americans are in unprecedented danger of having their communications intercepted and searched by the government — so who would dare criticize the government?

Some members of Congress know the danger of “one of the most dramatic and terrifying expansions of government surveillance authority in history.” Quite troublingly, they carved out an exception for themselves in the surveillance procedure. Intelligence agencies will have to notify lawmakers before spying on them — while no notification is extended to the more than 336 million Americans Congress has sworn to protect.

That’s why — problematically — Americans are rarely aware that their communications were monitored. In a handful of cases where Americans learned about surveillance and brought constitutional challenges, like FBI v. Fazaga, United States v. Hasbajrami, and United States v. Muhtorov, courts have struck down these challenges in deference to intelligence agencies and national security.

It is hard to obtain precise figures and a clear picture about the extent of the surveillance conducted by all intelligence agencies on Americans. The recent ODNI report highlights the different methodologies used by each agency to count and report the surveillance of Americans on the basis of FISA Section 702. For instance, a query term may be used on 10 or more occasions, but is reported as only one.

Surveillance has become ubiquitous, global and inescapable for innocent Americans. At the same time, safeguards are being lifted without substantial opposition from Congress, let alone the executive branch. The likelihood of a Supreme Court decision on this matter in the near future is minimal. The court’s demonstrated inclination to defer to the government in cases involving national security further diminishes the prospect that Section 702 would be struck down.

If Americans cannot defend their own rights and legislators cannot confine surveillance within the limits of the Constitution, one may wonder if America is still the land of the free.

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