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1 FISA Section 702: Civil Rights Abuses [1] (2023)

handle is hein.civil/fsascncvl0001 and id is 1 raw text is: B R E N N A N October 2023 CENTER FOR JUSTICE FISA Section 702: Civil Rights Abuses Section 702 of the Foreign Intelligence Surveillance Act was enacted to make it easier for the government to address foreign terrorist threats. The law gives the government broad authority to surveil non-Americans located abroad, but targeting Americans is prohibited. Unfortunately, intelligence agencies have used legal loopholes to turn Section 702 into a go-to domestic spying authority, using it to conduct bui°deds _ hth )alds of warrantless backdoor searches for Americans' private communications every year. Backdoor searches and other warrantless surveillance techniques raise both civil liberties and civil rights concerns because when intelligence and law enforcement officials can access Americans' sensitive information without a warrant, they are more likely to rely on improper considerations such as conscious or unconscious biases or political beliefs. Section 702 has been repeatedl subject to such abuse. Some recently publicly disclosed misuses of backdoor searches, which the I 'ISk Court says may exclude large numbers of abuses, include: * Searches for 141 racial justce rotesrors and two olitical activist mou that organized protests. * Searches based on a witness's report that two men of M le I descent were loading cleaning supplies into a truck. * Searches for Professor X iig Xi, an American academic who was wrongly accused of unlawfully sharing sensitive technology with scientists in China. * Searches for a sate court ud.e who reported civil rights violations to the FBI. * Batch searches that included current and former federal government officials, journalists, political commentators, and 19 000d(iXonors to a congressional campaign. * Searches for a sittingCa g ressman, a US Senattr, and a state senator. * Searches for a local political party. Congress can help end these abuses by closing the backdoor search loophole and requiring government officials to obtain a probable-cause court order or permission from the subject prior to searching for Americans in Section 702 holdings. To prevent the government from using other authorities to circumvent limitations that Congress places on Section 702, Congress should impose a similar requirement on any searches for Americans' information when the data being searched was obtained without a warrant because the government was purportedly not targeting Americans. Questions? Please contact Noah Chauvin at chauvinn@brennan.law.nyu.edu.

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