Caught in the Web: How Section 702 Enabled Warrantless Spying on Everyday Americans

AP Photo/Jose Luis Magana, File

How much leeway should federal agencies have when trying to protect our rights from threats, both foreign and domestic? This is a question that should have been settled by the Constitution and Bill of Rights. Nevertheless, it seems that the federal government continues trying to test the boundaries that these founding documents established.

Over the years, there have been plenty of examples of state entities infringing on the rights of the people through warrantless surveillance and all manner of spying that has violated people’s privacy. Unfortunately, Congress has enabled much of this abuse through legislation.

One example is the Foreign Intelligence Surveillance Act (FISA), which has been misused time and time again. The most recent notable example was how the Federal Bureau of Investigation (FBI) leveraged this program to spy on former President Donald Trump’s campaign during the 2016 campaign.

However, FISA has also been used to spy on regular Americans as well. While there are likely multiple problems with the legislation, Section 702 appears to have empowered federal agencies to indirectly conduct surveillance on Americans without affording due process as outlined in the Fourth Amendment.

I recently wrote a piece on a report showing that the FBI had significantly reduced the number of instances in which it surveilled Americans without a warrant. Still, in 2022, it spied on nearly 120,000 Americans without a warrant, which is a severe problem. Section 702 is the measure that allowed them to conduct this surveillance.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) has been a subject of intense debate and scrutiny in the United States. Enacted in 2008 and subsequently reauthorized, Section 702 authorizes the collection of foreign intelligence information by targeting non-U.S. persons located outside the country. While proponents argue that it is crucial for national security, critics express concerns over potential privacy violations and abuse of power.

One primary argument favoring Section 702 is its supposed effectiveness in combating terrorism and safeguarding national security. Proponents assert that the program enables intelligence agencies to collect vital information on potential threats from foreign sources, preventing attacks and saving lives. By monitoring communications of non-U.S. persons reasonably believed to be located abroad, Section 702 allows intelligence agencies to detect and disrupt terrorist plots, disrupt espionage efforts, and counter other foreign threats. However, it is not entirely clear how many threats have been neutralized as a result of the program.

Proponents argue that Section 702 facilitates intelligence gathering on foreign entities and governments, providing valuable insights into their intentions and activities. This information is vital for understanding global dynamics, protecting national interests, and formulating foreign policy. Supporters argue that the program contributes to the nation’s intelligence capabilities by monitoring foreign communications, enabling policymakers to make informed decisions in an increasingly complex and interconnected world.

Nevertheless, many have criticized Section 702 over concerns about privacy violations, free speech, government abuse, and others.

One of the most significant concerns raised by opponents of Section 702 is the potential infringement of privacy rights. Critics argue that the broad collection of electronic communications, including those of U.S. citizens incidentally swept up in surveillance, violates Fourth Amendment protections against unreasonable searches and seizures.

Many argue that the program’s broad authority, combined with ever-evolving technology, creates the potential for abuse or unwarranted targeting of individuals or groups based on political or religious affiliations. There are concerns that information collected under Section 702 could be used for unrelated investigations or shared with domestic law enforcement agencies, circumventing established procedures for obtaining warrants.

An example of how this provision is the controversy over Upstream Collection and “About” Collection. It was revealed in 2017 that under Section 702, the National Security Agency (NSA) was conducting “upstream” collection, which involved intercepting and scanning internet traffic as it traversed the backbone of the internet.

This raised concerns about the incidental collection of Americans’ communications. Additionally, there was controversy surrounding the “about” collection, where the NSA searched communications for certain terms even if they were not to or from the targeted individuals, thus, leading to the collection of Americans’ communications.

In 2019, a declassified opinion from the Foreign Intelligence Surveillance Court (FISC) showed that the NSA had committed significant violations of the law and the Fourth Amendment due to improper targeting and querying of Americans’ communications collected under Section 702. In addition, the court criticized the NSA for failing to adhere to its own procedures and oversight mechanisms.

There have been efforts to mitigate some of the issues with Section 702. In 2018, the USA Freedom Act was passed, which included reforms to enhance transparency and oversight of intelligence surveillance activities. The act required the government to provide additional information about the number of individuals and U.S. persons whose communications were collected under Section 702.

It also increased reporting requirements and mandated reviews of the FISC’s decisions. Still, this did not stop the FBI from conducting warrantless surveillance in millions of cases each year until it supposedly dropped to 120,000 in 2022.

Judge Andrew Napolitano wrote an op-ed for the Daily Caller after the news about the FBI report surfaced. He expertly illustrated how the program could, and has, been used to infringe upon our rights.

He wrote:

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the persons you reached and all the persons they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

Section 702 is yet another provision the government has imposed under the guise of protecting national security. But it is plain to see how federal agencies have enthusiastically used it to spy on American citizens, which is an egregious constitutional issue. But, as I have pointed out before, these nefarious actors get away with their abuses because most do not know about it or are willing to speak out against their machinations. Until that changes, our government will continue treating the Constitution as a piece of Charmin’s toilet paper.

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