FISA Section 702 is nearing its expiration, and Congress should reform the law to protect Americans from warrantless surveillance. Section 702 is supposed to be used only to conduct warrantless surveillance of foreigners abroad, based on the theory that they have no constitutional rights in the U.S. Currently, the FBI can warrantlessly gain access to Americans’ communications that are incidentally collected via surveillance authorized by Section 702. This is a huge circumvention of the Fourth Amendment, known as the backdoor search loophole. While the push to reform this law has emphasized the danger this poses to the rights of all Americans, FBI access to 702 data poses particular risk to journalists, immigrant communities, human rights activists, and civil rights activists who likely communicate frequently with foreigners. A recent FBI report on “Black Identity Extremists” (BIEs) suggests that black civil rights activists will be targeted for surveillance, which will include the FBI leveraging its access to Section 702 data.
An FBI report, written in August 2017 and leaked in October, purported to analyze and warn about the dangers posed by the “Black Identity Extremist” movement. Unmoored from reality or reason, the FBI invented this designation, which it described as:
“individuals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in American society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities, or governing organizations within the United States. This desire for physical or psychological separation is typically based on either a religious or political belief system, which is sometimes formed around or includes a belief in racial superiority or supremacy.”
The report has been criticized resoundingly by civil liberties and human rights organizations, and is a self-conclusory and poor attempt to connect six discrete acts of violence against law enforcement as an organized movement. Troublingly, the activity described as threatening can easily encompass the work of activists and organizers protesting police brutality and the overcriminalization of minority communities. Indeed the report itself notes that “[t]he mere advocacy of political or social positions, political activism, use of strong rhetoric, or generalized philosophic embrace of violent tactics may not constitute extremism, and may be constitutionally protected.” Many activists have voiced their concern that this document will be used to justify targeting them for monitoring and investigation. The report surprisingly connects the alleged “movement” to the actions of groups in the 1960s and 1970s, absent evidence to support this conclusion, painting a broad brush subtextually based upon race. There is a connection to the 1960s that the FBI overlooked: the FBI’s Counter Intelligence Program (COINTELPRO).
COINTELPRO was an incredibly controversial and damaging program of the FBI, which sought to disrupt domestic dissidents viewed as national security threats. Disruption was accomplished by means of surveillance, infiltration, and subterfuge, including the infamous surveillance of Dr. Martin Luther King Jr. and the FBI’s attempt to lead him to suicide. The program lasted from 1956 until 1972, and was part of an era of such excessive abuse and unlawful activity that Congress formed the Church Commission and instituted a series of reforms to reign in government surveillance practices. Notably, this included requiring a warrant for domestic intelligence surveillance, a process to be oversought by the newly created Foreign Intelligence Surveillance Court. In 2008, Congress appeared to forget the lessons of the Commission and passed the FISA Amendments Act, including Section 702, which altered this warrant requirement. Former Director James Comey is known to have kept a copy Dr. King’s wiretap authorization on his desk to remind himself of the FBI’s history. The shameful history of this era is one that current FBI Director Christopher Wray assured the House Judiciary Committee is well understood by the agency. And yet, it issued this report nonetheless.
The BIE report concludes there is a current threat to law enforcement: “The FBI assesses it is very likely that BIE’s perceptions of unjust treatment of African Americans and the perceived unchallenged illegitimate actions of law enforcement will inspire premeditated attacks, [sic] against law enforcement over the next year.” One cannot imagine that the FBI would not deploy its resources to investigate what it perceives as a threat to law enforcement. Civil rights activists certainly have cause for concern.
Congress has taken note of this suspect report. The Congressional Black Caucus met with FBI Director Wray and, during hearings before the House Judiciary Committee, Representative Karen Bass questioned Attorney General Sessions, FBI Director Wray, and most recently Deputy Attorney General Rosenstein about the BIE report. Her questioning highlighted the fear that this report blurs the line between problematic behavior and individuals exercising their First Amendment rights. More work needs to be done to uncover why this report was created, and how it can be retracted.
Also discussed at each of these hearings was the future of FISA Section 702 and attempts to reform the program of surveillance that the law authorizes. CDT has advocated for many reforms to this expansive surveillance authority to, among other things, close the backdoor search loophole, or the ability of the FBI to query 702 data using identifiers associated with Americans, and review Americans’ communications that are swept into the surveillance of the foreign nationals. The fight to reform Section 702’s many problems now rests largely on this major issue: will Congress pass a reform bill requiring the FBI to get a warrant before accessing Section 702 data in criminal investigations?
There are a few candidates for a Section 702 reauthorization bill, but none would require the government to obtain warrants before accessing the content of American communications writ large. Best case scenario, the USA Liberty Act, authored by the House Judiciary Committee, requires a warrant for criminal investigations, and we hope American activists like those who could be swept up in BIE investigations would get the benefit of that protection. Section 702 expires December 31, and Congress will need to take action soon on this surveillance authority. The BIE report is an unfortunate reminder of why Congress and the courts have historically guarded against warrantless surveillance, and why they should continue to do so now. While there is no evidence to suggest that Section 702 data has been been used against individuals surveilled as alleged BIEs, the door is currently open to this practice. Kudos to Representative Bass for asking the questions we need answers to. The rest of Congress needs to follow her example, protect civil rights activists, and close this backdoor search loophole.