The high-stakes fight over how much the government can spy on you

What’s happening

A bipartisan effort to rein in the government’s ability to secretly spy on Americans failed by a single vote in the House of Representatives last week. Instead, the House approved legislation that, now that it's been passed by the Senate, will significantly expand the intelligence community’s surveillance authority.

At issue was the Foreign Intelligence Surveillance Act (FISA), a sweeping national security law that sets out rules for who spy agencies are allowed to secretly monitor and under what circumstances. The heart of the disagreement was over a provision of FISA called Section 702, which permits the government to track the electronic communications of foreigners outside the U.S.

Section 702 is controversial because Americans frequently end up having their data collected. Here’s how: Let’s say you’re a U.S. citizen and you happen to communicate with a non-American located outside of U.S. borders who is under surveillance. All of your electronic interactions with them — emails, phone calls, social media messages — can be secretly tracked, stored and used by law enforcement. Typically, the government would need a warrant to monitor your activities, but thanks to this “backdoor” surveillance through Section 702, they don’t.

While that data is officially supposed to be “incidental” to surveillance of non-Americans, intelligence agencies have repeatedly abused the FISA system to directly target Americans. One government inquiry found that the FBI improperly searched for Americans’ data in the FISA database 278,000 times in a single one-year period. Other reports have found FISA searches targeting members of Congress, journalists, thousands of donors to a congressional campaign, Black Lives Matter protestors and people involved in the Jan. 6 insurrection.

Why there’s debate

President Biden and his administration have strongly urged Congress to renew Section 702 without new limitations on the government’s spying capability, arguing that any extra restrictions could deal a major blow to national security. National security adviser Jake Sullivan has called the law “one of the nation’s most critical intelligence tools” and claims it has been essential in protecting the country from a number major threats, including foreign adversaries, terrorism and drug trafficking.

This view is shared by the leaders of both parties in Congress, who argue that Americans’ right to privacy sometimes must be compromised in the name of national security.

Critics of Section 702 fall largely into two camps, those who want to see it amended and those who want it eliminated completely. Members of the first camp say there’s no reason we can’t have a system that keeps the country safe while also preventing unnecessary government intrusion. They argue that simple steps, most notably failed proposals that would have required warrants for searches of Americans’ data, would be enough to stop the worst abuses while doing very little to hamper legitimate surveillance operations.

The strongest opponents argue that the government simply cannot be trusted with this level of power, regardless of whatever rules are in place. In their opinion, the supposed national security benefits of Section 702 aren’t worth the violation of liberty that they believe will inevitably happen when law enforcement is given this kind of power.

Perspectives

Sometimes other rights need to be violated to keep America safe

“We do not endow federal agents with surveillance powers because they are honorable people who scrupulously follow the letter of the law, though. We grant these powers — the capacity to discover and thwart the machinations of hostile foreign regimes and terrorist organizations — only because they are necessary to protect the United States.” — Editorial, National Review

Any limitations on surveillance put the country at risk

“The data gathered under 702 has typically been most useful in the early stages of an investigation, before probable cause can be established. … Imposing a warrant requirement risks re-erecting the wall that existed between domestic law enforcement and foreign intelligence gathering before Sept. 11, 2001.” — Editorial, Washington Post

We need much stronger protections to ensure only legitimate targets are spied on

“Section 702 has been abused under presidents from both political parties, and it has been used to unlawfully query the communications of individuals and groups across the political spectrum. That’s why, with public trust in our leaders and institutions rapidly declining by the day, lawmakers should be strengthening civil liberties protections against abuses of power, not advocating for more of them.” — Kia Hamadanchy, Los Angeles Times

Spying is critical for national security, but new limits are needed

“While it would be a mistake to allow the act to sunset … it would be nearly as poor a choice to allow it to renew without reform. By making some modest changes to the courts created under FISA, we can achieve a realistic and appropriate balance between liberty and security.” — Nicholas Creel, Newsweek

One simple change can restore the balance between privacy and security

“Congress knows that intelligence agencies have repeatedly abused their authority by spying on Americans without a warrant, exploiting legal loopholes that allow them to do so. The solution now is the same as it was then: If intelligence agencies want access to Americans’ private communications, they must first get a warrant.” — Noah Chauvin, Dispatch

There is zero reason to trust the government to use its spying authority responsibly

“Perhaps FISA should be renamed the ‘Trust Me, Chumps!’ Surveillance Act. The FISA court has perpetually dismally failed to defend Americans’ constitutional rights. Washington must finally admit that there is no secret ‘doing God’s work’ clause in the Constitution that entitles FBI agents to trample Americans’ privacy and liberty.” — James Bovard, New York Post

If no one is willing to put real limits on government spying, it shouldn’t be allowed at all

“If people repeatedly point out abuses of a foreign intelligence law to conduct domestic snooping, and officials deny that's a problem worth addressing, then the existence of the law and the powers it authorizes should be reconsidered.” — J.D. Tuccille, Reason

Photo illustration: Yahoo News; photos: Getty Images