It’s not every day that Reps. Keith Ellison and Jason Lewis see eye to eye. But the two congressmen — arguably the most liberal and most conservative members of the Minnesota delegation, respectively — came together last week to oppose a reauthorization of a favorite tool of U.S. intelligence authorities, one that is now a flashpoint in the ongoing debate over security and privacy.
The House of Representatives moved last week to extend an authority known as Section 702 of the Foreign Intelligence Surveillance Act, which permits U.S. intelligence to spy on foreign nationals living abroad by collecting the communications they send across the web and by phone.
That authority was first granted by Congress in 2008, and while the extension passed smoothly last week out of the House of Representatives, there were far more “nay” votes against the policy than when it was first adopted. Ellison and Lewis were in good company: though 256 voted yes on the 702 bill, 164 lawmakers voted no — a group that included most of their Minnesota House colleagues. DFL Reps. Betty McCollum and Tim Walz, and GOP Rep. Tom Emmer, were in the dissenting column. (DFL Rep. Rick Nolan was not on hand to vote — he was back in Minnesota with his daughter, who is receiving treatment for lung cancer — but his office said he would have voted no, too.)
What brought together this disparate group of lawmakers was a shared concern over how U.S. authorities use the 702 authority, or abuse it: liberals and conservatives alike believe it can be used as a backdoor into unconstitutional snooping on U.S. citizens and legal residents.
The broad opposition to this obscure but important element of national security law shows how the politics of surveillance are changing — and more lawmakers than ever are finding reasons to oppose the status quo.
The 411 on 702
U.S. authorities ramped up their surveillance of foreign targets almost immediately after the September 11 terror attacks, whose 19 perpetrators all came from overseas. But under George W. Bush’s administration, the intelligence community lacked explicit legal authority to engage in the broad array of information and data-collecting techniques they were putting to use.
In response to mounting scrutiny, Congress amended the Foreign Intelligence Surveillance Act to include Section 702, which requires authorities to get approval from a federal court for the methods they use to collect information about surveillance targets, without needing specific warrants to search those targets’ communications. It also established limits to how authorities can use the information they obtain from those methods.
That vote, taken in 2008, passed the House with nearly 300 votes, and the Senate with 69 votes. Most Democrats voted no, but the measures received overwhelming support from Republicans, then the minority party in Congress. In the House, all but one Republican lawmaker voted to approve the authority.
In the years that followed, 702 became an indispensable tool for the U.S. intelligence community, whose leaders speak of it reverently — and defensively. They argue that the authority it provides — which permits them to surveil some 100,000 people — has enabled intelligence officials to collect life-saving information and stop acts of terrorism.
An example many point to is a plot the Federal Bureau of Investigation foiled in 2009, when an Afghan national living in the U.S. and under surveillance planned, and failed, to bomb the New York City subway. (The role of 702 in stopping this attack is disputed by critics of the National Security Agency, which conducts a vast share of this type of surveillance.)
As lawmakers debated the policy this week, former FBI Director James Comey summed up the perspective of the intelligence community, tweeting on Thursday that “thoughtful leaders on both sides of the aisle know FISA section 702 is a vital and carefully overseen tool to protect this country… Congress must reauthorize it.”
Comey’s successor, Christopher Wray, called on Congress to do that, warning that if they don’t, “intelligence collection on international terrorists and other foreign adversaries will be lost.”
But plenty of people from around the ideological spectrum disagree — and they argue that 702 has been used to conduct unlawful surveillance on U.S. citizens on American soil.
In collecting information on so-called “non-U.S. persons,” intelligence authorities also obtain information on Americans who might be communicating with or talking about foreign targets of surveillance. Under 702, authorities can search that information without a warrant, and the legality of that practice has been held up federal circuit courts. But critics are concerned that it violates the 4th Amendment, which prohibits warrantless searches.
Uniting right and left
The opposition from liberals and conservatives to extending 702 without major reforms springs from a shared, fundamental concern over privacy rights. Beyond that, however, the two sides sometimes offer different reasons as to why the program needs to change.
Rep. Lewis, a libertarian-leaning conservative who often frames issues from a constitutional perspective, said that opposing the surveillance status quo is not a “radical position.”
“I don’t think it’s healthy for a constitutional republic to have warrantless wiretaps authorized in a secret court,” he said, referring to the Foreign Intelligence Surveillance Court, where intelligence methods are approved. “There’s a price to freedom, and we’ve got to uphold that… It seems to me there’s plenty of evidence there would be abuses if this goes on.”
First District DFL Rep. Tim Walz said in a statement that “the bill I voted against today contains a dangerous loophole on warrantless searches on American citizens. As a result, I believe it does not uphold our fourth amendment rights… This intelligence-privacy balance is too important a matter to get wrong.”
Other Democrats were reluctant to grant continued, broad surveillance power to the presidential administration of Donald Trump, who they believe could misuse the authority to target political enemies and minorities, like Muslim-Americans.
Trevor Timm of the Freedom of the Press Foundation, a 1st Amendment watchdog, wrote in NBC News “you’d think [Democrats] would oppose handing Donald Trump any more power with which he could potentially use against all sorts of Americans who attract negative attention from his administration… In 2018, we have the worst-case-scenario president about whom privacy advocates have warned for years.”
Fifth District Rep. Keith Ellison, though he did not mention Trump, explained his concern that reauthorizing 702 in this way could trample the rights of religious minorities, immigrants, and people of color, whose privacy rights he said have been “rolled back” in recent years.
“By codifying a warrantless surveillance program into law, and giving the U.S. government access to millions of Americans’ private emails, text messages and phone calls, [the bill] further jeopardizes the privacy rights for those communities, including many within my own district,” Ellison said in a statement.
The breadth and depth of opposition to the 702 reauthorization — a high water mark for privacy advocates — illustrate how the politics of surveillance and national security have changed in recent years, according to Mike Johnson, a cybersecurity expert at the University of Minnesota.
“The Snowden revelations really shined some light,” he said, referring to the 2013 disclosures from the former NSA employee that revealed the extent of some NSA surveillance methods. “As a result of that light, a lot more questions are being asked. It’s a very emotional issue. That’s why you’re seeing more of a split than in the past.”
“The vote numbers show that,” Johnson added. “Your political affiliation is only a part of your decision now… There’s people who still feel really passionate about the fact that this is not a good idea, even though their political affiliations are aligned with people who say it is. I think it’s going to continue.”
Opposition falls short
Despite criticism from both sides of the aisle, 702 authority was ultimately renewed in the House, with few changes. The legislation is seen in Washington as being particularly reflective of the priorities of the intelligence community: though it puts into place statutes that impose new warrant requirements on certain types of information, intelligence authorities would retain a relatively free hand to pursue other kinds of information without a warrant.
However, advocates see some hope in legislation that leaders put on the House floor as an alternative to the establishment-backed measure: a proposal from two leading privacy advocates, Michigan Republican Rep. Justin Amash and California Democratic Rep. Zoe Lofgren, that would have imposed significant new limits on the 702 program by making requirements to obtain a warrant for surveillance much stronger.
Though their legislation fell short — it earned 183 votes — privacy advocates and civil libertarians saw it as a sign of progress that this proposal was put on the floor for a roll call vote in the first place, and that it garnered support from such a large and diverse group of lawmakers.
But they were not pleased that the 702 reauthorization is slated to maintain the status quo until a new debate comes up over its reauthorization — which would be in six years.
That frustration is shared by key members of the U.S. Senate, which is expected to vote on the 702 reauthorization this week. Already, two leading privacy hawks in that chamber — Kentucky GOP Sen. Rand Paul and Oregon Democratic Sen. Ron Wyden — are promising to filibuster the legislation, which could complicate matters as the surveillance authority expires on Friday.
DFL Sen. Tina Smith said that Republicans have not given the Senate time to fully consider 702 reauthorization and offer amendments “to improve the bill and better ensure that the emails, phone calls, and text messages of innocent people in Minnesota and around the country are not inadvertently swept up in terrorist surveillance,” she said in a statement. “The bill presented to the Senate does not include adequate privacy safeguards.” (Sen. Amy Klobuchar’s office did not offer a comment on her position on the surveillance bill.)