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As Congress weighs reauthorization, controversial spying tool turns 15

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  1. First Amendment
If Section 702 is to be reauthorized, lawmakers should insist on reforms that better protect First Amendment rights.
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Last Monday marked 15 years since the enactment of the FISA Amendments Act of 2008, the bill that created one of the Intelligence Community’s most powerful (and most controversial) surveillance tools — the authority commonly called Section 702. As lawmakers consider whether to renew the spying program before its end-of-year expiration date, we hope the debate will take stock of the serious risk Section 702 poses to First Amendment values, including the reporter-source confidentiality on which so much important investigative reporting depends.

Under the statute, with the compelled assistance of domestic communications providers, the federal government is authorized to monitor non-U.S. persons that it believes are located outside the United States in order to obtain foreign intelligence information — without the need to obtain individualized warrants. But as the Reporters Committee has repeatedly highlighted in comments to the Privacy and Civil Liberties Oversight Board, as well as in a string of friend-of-the-court briefs, that surveillance predictably sweeps up Americans’ sensitive communications too, including contacts between journalists and their overseas sources.

Part of the problem, as we’ve argued, is that the statute’s definition of “foreign intelligence information” is exceptionally broad; it sweeps in any “information with respect to a foreign power or foreign territory that relates to,” among other subjects, “the conduct of the foreign affairs of the United States.” As a result, virtually any foreign source that a reporter might think to contact about a matter of public concern would also be a legitimate target for surveillance.

Once those communications have been hoovered up, the FBI is largely free to sift through them for its own purposes, subject for the most part only to rules the executive branch draws up for itself. (Congress enacted a narrow requirement that the FBI obtain a court order for a subset of its database queries, but the agency has never — according to the intelligence community’s most recent transparency report — applied for one, even where the law would have required it.) The result is that Section 702 can, and does, intrude on the privacy of Americans with no connection to any legitimate foreign intelligence investigation.

The risk to the press is hardly hypothetical. An oversight report declassified in 2021 found that, among a host of other improper queries, the FBI had run searches on Section 702 data for American “journalists” and “political commentators.” And we’ve seen the same danger with other counterterrorism authorities — as when a Customs and Border Protection officer used another database, usually used to track national security threats, as part of a rogue leak hunt.

If Section 702 is to be reauthorized, lawmakers should insist on reforms that better protect First Amendment rights — including, as we’ve urged before, by narrowing the scope of upfront collection and by requiring a warrant to trawl through that data for Americans’ communications. As the Supreme Court has often explained, the Constitution insists on “scrupulous exactitude” when the government’s powers of search and seizure threaten the liberty of the press. But as it operates now, Section 702 is anything but narrowly tailored.

This year, Congress should demand better.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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