Attorney General Merrick Garland is widely – and rightly in our opinion – regarded as a man of integrity. When he recently appeared before a House committee to seek a straight-forward reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), he seemed genuinely surprised to hear that years of disingenuous statements and broken promises are finally catching up with intelligence and law enforcement agencies.
This authority, set to expire in December, was designed by Congress to allow agencies to catch foreign terrorists. The plain language of Section 702 demands that the government respect the Fourth Amendment, which requires a probable cause warrant before investigators can obtain Americans’ communications. And yet for years the agencies and secret FISA court have observed this constitutional requirement and clear statutory language in the breach.
So when Garland and FBI Director Christopher Wray appeared before multiple committees on Capitol Hill to wage an all-out campaign for reauthorization, they both seemed taken aback to learn that Congress is tired of being taken for a ride.
“The Department of Justice that you head has a brand name problem, has a trust issue with the American people,” Rep. Mike Garcia (R-CA) told Garland. “I sit on the Intel committee. I understand why we have FISA, what we use it for, what value it brings to our nation’s security, and I still don’t trust the Department of Justice, the FBI, and other federal agencies to use FISA in accordance with what it is intended for – and that is to keep Americans safe and not to be used against Americans who are not a threat.”
Included in the mass of Section 702 data are the texts, emails, and phone calls of millions of Americans whose data is “incidentally” swept up. It has long been asserted that the FBI frequently goes deep-sea fishing in this ocean of data for Americans’ most sensitive, personal information.
Soon after Sen. Mike Rounds (R-SD) questioned Wray about this practice, a senior FBI official confirmed to Charlie Savage of the New York Times that the bureau warrantlessly queried Americans’ data about 204,000 times in a recent one-year period. That number of annual violations would constitute a city the size of Richmond, Virginia. Over years, it could equal millions of Americans who’ve had their Fourth Amendment rights violated.
Congress has repeatedly tried to rein in the government. It added a provision when Section 702 was last reauthorized in 2018 requiring the FBI to obtain a warrant before accessing Americans’ communications in a small subset of criminal investigations. According to a report from the Office of the Director of National Intelligence, the FBI has never once adhered to this statutory warrant requirement.
During Director Wray’s recent testimony before another House committee, a Perry Mason moment occurred when Rep. Darin LaHood (R-IL) revealed that the FBI had searched his communications. Other victims of warrantless searches include a local political party, multiple current and former U.S. government officials, journalists, and political commentators.
Garland and Wray also learned that congressional concern goes far beyond Section 702.
Director Wray, in response to a question by Sen. Ron Wyden (D-OR), revealed that at some unspecified time in the past, the FBI purchased Americans’ location data. When Rep. Ben Cline (R-VA) asked DOJ Inspector General Michel Horowitz about this practice, Horowitz replied that warrantlessly acquiring Americans’ location data flatly contradicts a 2018 Supreme Court decision.
What other sensitive, personal information is the government purchasing from third-party data brokers? We all have digital diaries detailing our networks of friends and associates, political and religious beliefs, and intimate relationships. Yet government agencies purchase this data freely.
Unlike Director Wray, who bristles when challenged, General Garland seemed to read the room. He agreed that “we need the trust of the American people” and referred to his memorandum to the FBI to improve compliance with the law. That memo is a commendable list of procedural improvements to keep the FBI on track. Not once does it mention “warrants” or the “Fourth Amendment.”
Displays of goodwill from agency leaders is no longer enough. As Rep. LaHood leads a working group on Section 702 reauthorization, he should stick to his promise to Wray that “a clean legislative reauthorization of 702 is a non-starter.”
Any reauthorization must require a probable cause warrant for Americans’ data. The secret, one-sided FISA court should be required to seek the advice of civil liberties experts anytime a journalistic, religious, or political organization or person is targeted. And Congress should look beyond Section 702, including the authorities that allow the government to purchase or acquire Americans’ personal information without a warrant.
Agency leaders will claim that any changes will put the nation at risk. Congress must not give in to emotional blackmail. The price of Section 702 reauthorization must be serious reform.
