'If You Can Keep It': The Future Of The Foreign Intelligence Surveillance Act

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0:45For today's installment of If You Can Keep It, our weekly series on the state of our democracy, we discuss the future of a key foreign surveillance tool of the federal government called FISA-702. It was originally scheduled to expire today, April 20th. But last week, Congress voted to extend the deadline to April 30th. That's after House Speaker Mike Johnson failed to get his party on board to reauthorize this section of the act. So we'll get to that later. But first, let's start with the latest in the U.S. and Israel's war in Iran. President Trump says he's sending a U.S. delegation to Pakistan today to negotiate an extension of the two-week ceasefire agreement between the U.S.

1:24and Iran. It's set to expire this Wednesday. Iran, however, has said it has not agreed to a second round of peace talks, claiming that the U.S. blockade of Iranian ports has halted progress in negotiations. This comes after Trump accused Iran of violating the two-week peace deal over the weekend after Iran fired at two ships in the Strait of Hormuz. On Sunday, the U.S. seized a ship with an Iranian flag. It's the first known use of force in the U.S. blockade. An Iranian official has promised retaliation for this, And Trump has threatened to destroy power plants and bridges in Iran, adding the U.S.

1:59would, quote, blow up the whole country if Iran doesn't agree to a deal. I'm Jen White. You're listening to the 1A Podcast. We'll be back with more after this short break. Stay with us.

2:13Welcome back to the 1A Podcast. Before we get to this week's If You Can Keep It, some news in the U.S. and Israel's war in Iran. Joining us in studio to discuss the latest is Nagar Murtazavi. She's a journalist and host of the Iran podcast. She's also a senior fellow at the Center for International Policy. Nagar, welcome back to the program. It's great to be back, Jen. Good to see you. So, Nagar, let's just start with what happened over the weekend. Iranian military officials say it's taking back strict control over the Strait of Hormuz, despite saying this very crucial shipping route was open a day earlier.

2:48Why is Iran taking back control of the Strait, and what are the implications? Well, I think this is sort of a back and forth that Tehran is doing with President Trump. They agreed to open the strait as part of the ceasefire, the two-week ceasefire, temporary ceasefire, that they agreed while they negotiated a permanent end. And then they expected the U.S. to also open its blockade on the blockade. And what Tehran is saying is that that didn't happen. And we also heard the same line from President Trump. And so they went back and also earlier part of the ceasefire agreement was a ceasefire in Lebanon, which also didn't happen.

3:24And so the Iranians have re again closed the trade once as a reaction to that continuation of the attacks, Israeli attacks on Lebanon. And then that was agreed. A ceasefire in Lebanon happened. And then they also now went back as a blockade on the blockade, a continuation from the U.S. side. So there's this back and forth, which is not unusual for ceasefires. Usually ceasefires are messy. They're chaotic. And, you know, both sides try to push until the very last moment. They figure out each other's absolute red lines and also lines that can be blurred or crossed. And I think this is this is one thing that the Iranians are signaling that for them, the Strait of Hormuz really is their main leverage, their golden card.

4:03They're not going to give it up if they don't see reciprocity from the U.S. side on their terms. Why did Tehran expect the U.S. to lift its blockade? Because very soon after the announcement that they were opening the strait, President Trump came out and said the U.S. blockade was going to remain in place. Well, I think this was essentially it all comes down not just to the battlefield, but to the economic impact of U.S. policies on Iran. And it's not just this war. So we have to keep remembering from Tehran's viewpoint, there has been a silent war, an economic war launched on them since the first Trump term.

4:39President Trump pulled out of the JCPOA, the nuclear deal, and he imposed what he called the campaign of maximum pressure, which is crippling sanctions, economic sanctions on every major industry in Iran. And it really has crippled the Iranian economy. And so that's one thing that's front and center in the Iranian mind, that they want to come out of this war in the long term in better shape economically. It's something they couldn't do at the negotiating table during peacetime with President Trump. And now they're trying to gain that from the battlefield. So the Strait of Hormuz, from their viewpoint, is not just a card or leverage for the battlefield.

5:10It's also something that they can turn into economic gain. They're talking about potentially collecting fees for passage. And also the U.S. blockade is something that can potentially impact the Iranian economy. I want to turn away from the U.S. and Iran's relationship and talk about some of the internal dynamics in Iran right now. Iran's foreign minister, Abbas Araqshe, is the one who said the strait would open last week, just a day before Iranian military officials said they were taking back control. What's your understanding of the power dynamics within Iranian leadership right now and how that may be affecting some of this back and forth?

5:47So we see debates inside Iran, but not so much a gap or a rift in decision-making. It's interesting because, you know, the country's supreme leader was assassinated, but quickly they had a replacement, his son, another Ayatollah Khamenei. Top brass has been assassinated continuously during the war, but the Iranians have been able to sort of put the house back together and regroup, and they continue running the country and running the war. And also they have adopted this sort of mosaic way of fighting with less command and control. But at the same time, I think decision making is still done in a group way at the top, and there's agreement, but you see different sort of narratives or different, you know, lines coming out.

6:32In the driver's seat, we have the military commanders, of course. They're the ones running the show, running the country. Most top decisions are coming from them. And the diplomats, even including the president, who's a more moderate person, Masoud Pazeshkian, I don't want to say are in the back seat, but they're not the ones running the show front and center. That's why we see, for example, the Speaker of Parliament, Qalibov, is the one who comes to the negotiations because he's de facto running this war as a former commander of the Revolutionary Guards, military commander with wartime experience, as opposed to the president who's more sort of the president of peacetime.

7:04So I see them sort of working hand in hand, but then at the same time, the diplomats are the ones who have to come in after the war and try to clean up a lot of this mess that is created when the commanders are the ones in the driver's seat. So right now, how much, if any, traffic is making its way through the Strait of Hormuz? It's not very clear. I mean, we just saw reporting today that it's been most traffic since the war began. So it seems like the Iranians have loosened. I mean, we have to remember, it's not like they have completely closed. This is non-military, you know, ships, cargo ships that are trying to pass through a narrow passageway.

7:45And just the feeling of lack of safety and security is enough. They have insurance concerns. These are very slow vessels. And just that lack of safety and security is something that the Iranians have been able to create and really limit the passage. But we're seeing that there's more traffic going. And they have also calibrated, the Iranians have calibrated their approach, you know, connecting it to diplomacy. like whoever country they see as the enemy, as a friend, as a foe, that the passageway is going to be different. But overall, I think they're just trying to allow more and more passage through the strait.

8:23And that's what we're seeing also from the reporting. So as we mentioned, President Trump says he's sending U.S. envoys to Pakistan for peace talks with Iran today. Vice President J.D. Vance will lead the U.S. delegation. As of Monday morning, Iran says it will not be sending its own delegation to Pakistan. So what are the realities around whether or not these talks will actually happen and whether we're moving any closer to a peace deal? I think the Iranians, I mean, we saw this in the previous round of negotiations in Islamabad, that they were trying to push until the last minute, which is also something that President Trump does.

9:00You know, right before the negotiations start, he's trying to push with this maximalist rhetoric and also threats. That's, you know, if you don't do this or if you don't take my deal, I'm going to end the civilization. It's something the president actually put out in writing. And I think the Iranians have sort of tried to adapt that and try to push as much as they can until the last minute. It doesn't mean that they will definitely not show up, which is something that happened the last time. But they want to see if they can take as much concessions until the last minute before the talks start.

9:28This also goes to a lack of trust between the two sides, especially from the Iranians that, of course, the weaker party. They say we sat down with this administration and negotiated twice, once last year, once this year with Steve Whitcoff leading those negotiations. And then in the course of those rounds of negotiations came attacks and wars. And so now that they're in the middle of an actual war, the level of trust is basically very low, if not zero. And so from their viewpoint, as much as they can get before they even agree to anything is going to be more meaningful. And then one other worry that I see in the Iranian, you know, state media and social media being pushed out is that they're not even sure if their negotiators are going to be safe.

10:06Like if these negotiate and this is something President Trump has threatened, if these negotiators come, these are, you know, top officials and they negotiate, they don't accept the deal. Are they going to be assassinated by Israel when they get back, which is something that's happened? Or are they going to be, you know, safe and to be able to continue? So this is the level, I'm just trying to explain the level of mistrust from the two sides up until the moment of the negotiations, if they even start. But one thing I want to add is that the fact that the president, the vice president is or the president sends the vice president, vice president Vance goes through these negotiations.

10:40That in itself shows seriousness from the Washington side and also from the Iranian side. They basically send the Speaker of Parliament, who I said is de facto running the war. So almost equal footing as a vice president. And they have met for the first time in the past round in Islamabad directly. That was historic. That was unprecedented since the revolution in the highest level of direct talks. And so that, I think, in itself shows seriousness on both sides, that they want to agree on something. They want to end this war. It's just the gap between what they want out of it is really wide still.

11:12Really briefly, as you mentioned earlier, Israel and Lebanon have their own 10-day ceasefire agreement, which went into effect last Thursday. day, what role, if any, is Israel playing here? Well, I'm not sure if Israel wants this war to end or at least to end on U.S. terms. Their interests may very much differ. And so, but from the Iranian viewpoint also, because Lebanon or Hezbollah entered this war in cooperation with Iran, I don't think Iran is going to drop Hezbollah and that ceasefire from the process. So the Iranians, that was one of the main sticking points, a red line. And that's why the ceasefire was more messy at the beginning.

11:46But I think if that continues, the U.S. has to be able to continue to put pressure on Israel to hold that ceasefire with Lebanon. Otherwise, the whole process between Washington and Tehran can also unravel. That's Negar Murtazavi. She's a journalist and host of the Iran podcast. She's also a senior fellow at the Center for International Policy. Negar, as always, thank you. Great to see you. Thank you so much for having me. And as we noted, this story is changing fast. Find the latest at npr.org and throughout the week here on 1A. Coming up, we discuss the future of FISA-702, a key surveillance tool of the federal government and the push to reform it.

12:20That's just ahead.

12:27Welcome back to the 1A podcast. We'll keep you updated on the latest in the U.S. and Israel's war in Iran as news develops, but let's shift gears a bit and get into our weekly series, If You Can Keep It. Most of us would agree that access to foreign intelligence is important to national security, but what about how that intelligence is gathered and whose private data get swept up in the process. The Foreign Intelligence Surveillance Act was first established in 1978. Following Watergate, it's a key U.S. surveillance tool. Section 702 was added to the act in 2008, allowing the government to collect the communications of more than 300 ,000 foreign nationals outside of the U.S.

13:06without a warrant every year. The Trump administration would like to keep it that way. But lawmakers on both sides worry that the act violates American citizens' right to privacy. We have to make changes. Now, think about this. After January 6th, I was surveilled. During the bottom of the years, they released my tax returns. When I ran a large hospital company, they targeted my company because I was against Hillary Care. So if they can target a large company CEO and a U.S. senator, they can target Americans. So we have to have some common sense changes. Nobody at the FBI has ever been held accountable for the over 200 ,000 Americans that have been surveilled.

13:42Nobody. FISA is all, it's called the Foreign Intelligence Surveillance Act. It's all about the surveillance of people abroad. It's not about surveilling people here. You first heard Republican Senator Rick Scott on Fox News on Sunday, then Democratic Representative Jamie Raskin speaking on the House floor last Thursday. A FISA 702 was set to expire today, April 20th. But last Friday, the House voted to extend the expiration date, 10 days, to April 30th. That's after House Speaker Mike Johnson failed to corral his party's support behind a long-term extension. The Senate also passed that short-term extension, so as its future hangs in the balance, what's at risk if we lose this tool, and what are the dangers of failing to reform it?

14:25Joining us in studio to talk about the future of FISA 702 is Sharon Bradford Franklin. She's the former chair of the Privacy and Civil Liberties Oversight Board. That's an independent agency within the executive branch of the United States government. Sharon, welcome to the program. Thank you. And also with us is Jake LaPerouque. He's the Deputy Director of the Security and Surveillance Project at the Center for Democracy and Technology. That's a nonprofit focused on digital rights and freedom of expression. Jake, it's great to have you back. Hi, great to be chatting with you. Jake, before we jump into the conversation, I just want you to clarify some definitions for us.

14:58There's FISA, the law, and then there's the section of that law, 702, which is what we're focusing on today. First, what is FISA? Right. So FISA is the set of foreign intelligence surveillance authorities that was created in the post-Watergate era when there was still a lot of ambiguity of how do we engage in national security surveillance. So the system was set up for basically warrants for when you would go after and do searches or wiretaps on suspected spies. In the post-911 era, when we also were having a lot of huge innovations in internet and global communications, we created FISA 702, born out of some of the Bush-era surveillance programs that were secretly held then.

15:38And the concept of this was it's going to be warrantless surveillance. So you don't go to the FISA court or any court to get individualized approval or show individualized suspicion of who you're monitoring. You can go after basically any foreigner abroad as long as the purpose is to get foreign intelligence information, which is defined very, very broadly. So it's programmatic. You can go after anyone, surveillance, so long basically as they are a foreigner located abroad. Those are the two strict rules. The problem for privacy rights and for risks of abuse is that whenever foreigners talk to Americans, that gets swept up too, all without a warrant of probable cause.

16:14So, Sharon, what does the intelligence community say about the utility of FISA 702, why they need access to it? FISA 702 is indeed a valuable surveillance program. And I just want to say off the top, it is both valuable and a huge threat to Americans' privacy and civil liberties. I know we'll talk about the threats in a moment. The value comes in a variety of forms, and the value is because it does enable the government to target these foreigners outside the United States and collect communications in connection with counterterrorism, weapons of mass destruction, foreign governments and associated entities, and now newly with the last revision in connection of counter-narcotics.

17:02I think it's important to emphasize, though, that those targets who are located outside the United States don't have to be bad guys. The targets can be people who simply possess or communicate what's called foreign intelligence information. So they can be foreign government officials, people who simply know information that is related to one of the approved foreign intelligence purposes. Jake, when Section 702 was originally implemented, were there red flags at the very beginning that said, you know, this may be overbroad. We may be running a risk of also exposing American citizens' private data in the way this is constructed.

17:43Yeah, and this is a debate that's gone on for over 15 years now. At the time that the program was created, there was a lot of questions about its constitutionality, about its impact on Americans. It was a key point of topic during the Stoning Disclosures, where even though we knew that this program existed, some of the details about it and how it operated really stunned the American public. And for several rounds in Congress now, we've had a very intense debate, especially about these sort of quarries for Americans, efforts to pull Americans' communications up and its impact on Americans. So it's been a long-running topic on this same idea.

18:19What we've seen, especially in the last four or five years, though, is a lot of documentation of abuse and misuse of these queries where Americans' communications will get vacuumed up through 702 surveillance, and then the FBI, CIA, and NSA will conduct a query, basically an effort to say, hey, pull up from the database this specific Americans' communications. I want to seek those out and read those. And a lot of the time we found that that's happening in ways that aren't actually based on proper cause or suspicion of wrongdoing, but more seem to be phishing investigate efforts or really just efforts to pull up sensitive types of Americans' communications in ways that indicate abuse.

19:00Jake, how are you learning about that use of FISA-702? So those uses have been documented through various compliance reports and efforts researched by the Department of Justice and the Office of the Director of National Intelligence. There's also been a lot of great work and revelations from the Privacy and Civil Liberties Oversight Board, from Sharon's work there. Those types of oversight entities have been crucial to documenting abuse. Unfortunately, right now, our ability to rely on them in the future is probably under threat. Well, Sharon, as we said, you're the former chair of the Privacy and Civil Liberties Oversight Board, and this is, again, an independent group within the executive branch.

19:42Tell us about some of the research you've done to better understand how FISA 702 is being applied in your role as the chair? Sure. So I'll first just mention that the Privacy and Civil Liberties Oversight Board had done a thorough investigation and report on Section 702 back in the 2013 and 2014 time period, when I actually was at that time Executive Director, head of the staff. And then in the 2022-2023 time period when I was chair, we did a very thorough review of Section 702 and issued a lengthy public report in September of 2023. And all members of the Privacy and Civil Liberties Oversight Board, it's headed by a bipartisan five-member board, and all staff have to have top-level security clearances.

20:29So we had access to the full scope of classified information about the program, its operations, both the value of the program and the problems in its operation. And one of the important roles that the board plays is in its reports. The board statute actually requires that reports be made available to inform the public to the greatest extent possible, consistent with protection of classified information. And so one of the roles that the board plays is working with the intelligence agencies to determine what information can be declassified in the public interest to give a better understanding. But I'm happy to go on and talk a little bit about some of the abuses that we found that Jake alluded to.

21:11Sure. So I know we'll talk more in a moment. The problem with these backdoor searches or these searches for Americans' information is both that the standards are too low, and we'll talk about that, but also that even with the lower standards, there have been violations and abuses, and particularly with FBI. And we've seen FBI conducting queries looking for information on Americans with their members of Congress, donors to a political campaign, members of the media. And, for example, we found that in the aftermath of the murder of George Floyd in one instance in June of 2020, the FBI conducted queries involving 141 identifiers associated with Black Lives Matter protesters.

21:58We also saw them searching through the database looking for people in connection with January 6th. And they did raise the bar for these internal rules, still too low, and created special rules that Congress codified for what they call sensitive queries, such as those involving political figures or members of the media. And yet there still have continued to be abuses. The DOJ inspector general had a report just last fall, found at least seven instances where improper queries associated with members of the media not following those rules. We got this question from Marvin who asks, if I send or receive an email to or from an outside and address outside the U.S., does that essentially open all of my emails to the FBI?

22:43And I see you shaking your head here, Sharon, But I think the question is about how is information or certain lines of communication, how are they flagged? Sure. So first of all, as was already discussed, the targets have to be these non-Americans who are located outside the United States. So Americans' communications absolutely are swept up, but only when they are in contact with one of these, you mentioned, over 300 ,000 foreign targets. So if you are in contact with one of those, then all of your communications with those targets, and perhaps you're in contact with more than one such target, those would be in the database, but not all of your emails.

23:23But importantly, again, I want to emphasize that targets don't have to be suspected bad guys. So Americans can be in touch with relatives or friends or they know foreign government officials, maybe it's through their business. people who aren't necessarily bad guys can have your legitimate communications swept up in the database if you are in touch with one of those targets. We heard from Terry who emails numerous well-respected privacy organizations have called for modifications to Section 702 of FISA before reauthorizing the law in order to safeguard the rights of Americans, specifically by one requiring judicial warrants before mining for information on Americans and two disallowing the purchase of personal information from data brokers.

24:06If these modifications are not enacted, Trump and his zealous data aggregators will add the information from these FISA files to the searchable personal dossiers on all Americans. They are already readying for their nefarious purposes. Once this information is collected and aggregated, it cannot be reversed. So, Jake, as we already mentioned, FISA 702 was set to expire today. Last week, Congress voted to extend its expiration by 10 days. I want to just lay out what's played out in Congress. The House first blocked a proposal extending it for five years. That proposal included some minor changes to FISA 702.