Section 702 Needs More Robust Safeguards to Prevent Dragnet Use

As a key congressional staff member and supporter in the development of post-Sept. 11 intelligence and surveillance laws, I have watched with increasing concern as public information suggests use of those authorities has strayed further and further from its original legislative intent.

I now believe these authorities must be substantially reviewed and reformed. Congress shouldn’t consider any renewal without including more robust safeguards to prevent dragnet use of Section 702 authority to conduct surveillance on Americans.

Authority for these activities was initially provided in the Protect America Act of 2007 and is now known in its current form as Section 702 surveillance. The reform was part of an overall strengthening of the Foreign Intelligence Surveillance Act that began with the original Patriot Act in 2001 and continued through multiple bills and renewals over several years.

Through part of this time, I helped draft and negotiate some of these authorities and pushed hard for them to help fight foreign terrorists in the wake of Sept. 11.

I wouldn’t be considered hostile to strong national security laws or federal law enforcement. At the same time, I have spent portions of my career conducting independent congressional oversight of use of those authorities.

Section 702 allows the intelligence community to obtain court approval to conduct broad and categorical surveillance on nominally foreign communications transiting the US. It was intended to help fight terrorists and modernize surveillance for critical intelligence priorities—not to write a blank check for dragnet surveillance of Americans.

As a private citizen, I now have serious concerns about how these laws are being implemented in a manner that has strayed far from what was originally intended. They are being used far more broadly and indiscriminately than Congress ever would have allowed or intended to sign off on in the first place.

The errors, overreach, and abuses of the intelligence community in using these authorities is well-documented in a series of publicly available inspector general reports, and FISA court opinions as documented in a Center for Democracy and Technology (CDT) issue brief on FBI misuse of FISA Section 702.

These evaluations show the FBI has regularly conducted hundreds of thousands of searches of the communications of US citizens. At least 2% of those searches were conducted improperly even within the extremely broad interpretation of the law the intelligence community has undertaken for itself.

The arguments and examples publicly presented by the intelligence community for a clean renewal or expansion of the Section 702 today seem to have little to do with priority intelligence needs that were originally raised to justify the law, altering the balance that justifies such extraordinary authorities.

Significant issues with the current operational interpretation and scope of use of Section 702 also occur against the backdrop of other significant breaches of trust.

These have produced legitimate concern that the intelligence community has substantially eroded its institutional culture and safeguards. In the past, these guardrails demonstrated a clear understanding that special intelligence authorities and capabilities could and should not be directed at US citizens or lawful domestic activities.

Today, there is a crisis of public trust in the activities of our intelligence community among Americans across the political spectrum. Section 702 authority has been used directly to conduct surveillance on members of Congress and donors to congressional campaigns, local political parties, and protesters across the ideological spectrum.

The FBI and other agencies have acknowledged their multiple errors only in narrow technocratic terms and implemented equally technocratic solutions that failed to recognize fundamental lapses in institutional and political culture. Meanwhile, critical errors continue to persist in a manner that is completely unacceptable in a democracy.

Instead, we are playing with fire around delicate walls that were put in place by Congress to guard fundamental precepts protecting civil liberties and fundamental freedoms that are guaranteed by the Constitution.

The disconnect with the original intention of the law, and expected institutional culture I thought was clearly and jointly understood by Congress and the executive branch, is stunning and can’t be perpetuated.

Until the intelligence community shows it truly understands why and how its behavior has been so problematic (which is a requirement the FBI and the Justice Department help to impose on every federal criminal defendant), Section 702 simply shouldn’t be renewed without reforms—not only to FISA itself, but also with proactive steps to address other problems.

These include indiscriminate use of vast swaths of data concerning everyday activities of Americans collected by private data brokers.

Democratically elected leaders in Congress are supposed to oversee, bound, and control the intelligence community and not vice-versa. The leash needs to be on the intelligence community, not the other way around.

Ultimately, Congress and its Intelligence and Judiciary Committees must conduct meaningful oversight of intelligence programs throughout government to ensure they keep within the original scope and intent of the law and to make changes or implement additional safeguards where needed.

Section 702 has always included sunsets to ensure such reviews occur regularly. Congress as a whole now must do its job before authorizing any renewal of these authorities, which can occur only after full and fair debate and consideration and express consent by the elected representatives of the people.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Philip Kiko was Chief of Staff and General Counsel of the House Judiciary Committee from 2001-2007, helped guide and draft the original Patriot Act, and assisted in drafting and oversight of other intelligence and FISA and surveillance authorities.

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