The push to reform a key surveillance law before it expires

0:00It's Consider This where every day we go deep on one big news story. Today, the controversial surveillance law that is due to expire after this week. It has a complicated name, Section 702 of the Foreign Intelligence Surveillance Act, or FISA, but it is key to counterterrorism work. It authorizes U.S. intelligence agencies to intercept the electronic communications of foreign nationals outside the U.S. Section 702 grew out of a secret, warrantless surveillance program conducted by the Bush administration after 9-11. That is Democratic Senator Dick Durbin of Illinois. But there's a fatal flaw at the core of Section 702.

0:44This authority is also used for warrantless spying on innocent Americans. Durbin's criticism, and by the way, it's shared by some Republicans as well, is that foreigners talk to Americans. And that creates a potential loophole for government intelligence agencies to comb through that data and surveil the communications of U.S. citizens without a warrant. The FBI has abused 702, and that's why we are here today. Let's get 702 reauthorized with constitutional protections. And that is Republican Congressman Keith Self of Texas. Now, some in or close to the intelligence community say that requiring a warrant to access Americans' data does not make sense in this case.

1:34Here's the late Stuart Baker, who used to be general counsel at the National Security Agency, testifying to Congress in January. All of the things that we care about for intelligence purposes are also violations of our criminal law. By saying, oh, you need a separate warrant if you've got a separate interest in getting access to information we already collected for intelligence purposes, we shouldn't make that mistake with something as important as things like terrorism or espionage. Congress appeared to be moving towards a deal to reauthorize FISA Section 702 without reforms, but stalled over concerns about President Trump's pick for acting director of national intelligence.

2:14And Congress knows the law is set to lapse after Friday. Consider this. How could this crucial intelligence law be amended to address potential privacy violations under the Constitution? And what happens if the law just expires?

2:34From NPR, I'm Elsa Chang.

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3:31It's Consider This from NPR. Under the authority of FISA Section 702, nearly 350 ,000 foreign nationals were targeted for surveillance in 2025. That's according to the Office of the Director of National Intelligence. That is a lot of intercepted emails, texts, and phone calls, some of them with U.S. citizens. Legal advocates like Elizabeth Goyteen of the Brennan Center for Justice worry that collecting all that data makes it very easy for government agencies to violate the law and lets them access the communications of Americans who are not suspected of any wrongdoing. Congress was essentially trying to legalize an illegal warrantless wiretapping program that was conducted by the Bush administration after 9-11.

4:21So Congress changed the law in 2008 to make it easier to spy on suspected terrorists, foreign terrorists overseas. However, over time, it has become a rich source of warrantless access to Americans' communications. And that's why the law is so controversial today. Okay, and we will get to your critique of the law. But the government says Section 702 is really important. It helps them gather the intel that makes up something like more than 60 percent of the president's daily intelligence briefing. So they say Section 702 is a vital tool for national security. Is there at least some merit to that claim?

5:04Sure. The government has actually provided many examples of cases in which actually targeting foreigners and reviewing their communications provided significant national security value. What the government hasn't done is show that there's significant national security value to the practice of warrantless backdoor searches. And that's the practice where agencies search through the communications that they obtain under Section 702 for the purpose of finding Americans' phone calls and text messages and emails. In recent years, FBI agents have conducted searches for the communications of members of Congress, multiple U.S.

5:49government officials, journalists, and political commentators, more than 19 ,000 congressional campaign donors, and tens of thousands of protesters from across the political spectrum. Okay, so how would you best balance between national security and privacy? Like, if Section 702 does do important national security work, how do you give Americans protections for their data without potentially impeding that national security work? Like, how would you reform 702 exactly? It's quite simple. For more than a decade, there's been broad bipartisan support for reforming Section 702 by requiring the government to get a warrant before accessing Americans' communications that are swept up.

6:35This reform has actually passed the House twice. But in the current reauthorization cycle, Republican leadership isn't allowing any votes on this reform. OK, well, on this idea of a warrant each and every time, I could see an intelligence official saying, man, if I need to go get a warrant, if I need to go to court for every search of the FISA database, that would basically break the system, rendering this whole law useless. What is your response to that? The value of Section 702 overwhelmingly is in collecting and reviewing foreigners' communications. So that value continues. It is not affected.

7:15And in all of the cases where backdoor searches have actually provided value in the past, and that is just a handful of cases that the government's been able to identify, it appears that the government actually could have gotten a warrant or would have been able to invoke one of the exceptions to the warrant requirement. So this reform should have absolutely no impact on the value of the program. So as we mentioned, there is this reauthorization deadline on Friday, tomorrow. What happens if Congress does not act by the deadline? Like, does the surveillance under Section 702 just go dark? The surveillance does not go dark if the law expires, as some of the members who oppose reform are saying.

8:00The law is clear that these certifications remain in force even if the underlying statute expires. They're grandfathers. The current set of certifications was approved by the FISA court in March of this year. That means Section 702 surveillance is locked in until March 2027, regardless of what happens tomorrow. Elizabeth Goytin, Senior Director at the Brennan Center's Liberty and National Security Program. Thank you very much. It was my pleasure. This episode was produced by Vincent Acavino with audio engineering by Ted Meebane. It was edited by Patrick Jaron Watanonin. Special thanks to NPR congressional reporter Eric McDaniel.

8:40Our interim executive producer is Courtney Dorning.

8:47It's Consider This from NPR. I'm Elsa Chang.

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