As one of the final congressional acts of 2023, President Joe Biden has signed into law Congress’ 2024 defense bill, an $886 billion appropriations allocation that also quietly renewed a hotly-contested federal surveillance program.
Included in the National Defense Authorization Act (NDAA) was an extension of Section 702 of the Foreign Intelligence and Surveillance Act (FISA), originally passed in 1978 to provide oversight of foreign intelligence surveillance activities. Section 702, added in 2008, allows the federal government to surveil the communications of foreigners overseas without a warrant, as well as collect data on Americans exchanging information with “targets” abroad — the data is then indefinitely stored for future investigations.
“I also thank the Congress for its extension of title VII of the Foreign Intelligence Surveillance Act,” Biden wrote in a White House statement. “My Administration looks forward to working with the Congress on the reauthorization of this vital national security authority as soon as possible in the new year.”
Representatives say a reform bill is still in the works for the 2024 session, but advocates are wary of the slow-moving decision-making trickling through the Biden Administration and fear the Act’s continued privacy threats.
These groups have documented cause for concern, citing not only the well-established history of surveillance abuse enacted by federal agencies but also the admissions of federal actors themselves. FBI director Christopher Wray said in a November House Homeland Security hearing that the bureau had, in fact, misused FISA’s powers before instituting more “restrained” policies for its use.
“Abuses and civil liberties violations are going to continue at a completely unacceptable rate. For every day, every week, every month that Section 702 continues without reform, that is what’s happening,” said Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security program, in an interview with Mother Jones.
Wray, however, is joined by political commenters and politicians across political parties who have called on Congress to retain Section 702, arguing in favor of its use against dangerous foreign actors and noting previous modernization efforts to bring the policy up to the technological realities of today — as well as ensure Americans’ Fourth Amendment right against unreasonable searches and seizures.
Rather than protecting its citizens, civil groups and advocates have long accused the program of being an unconstitutional use of government power and of disproportionately affecting certain Americans more than others, including heightened scrutiny of communities of color and related organizations. In May, newly declassified documents showed the FBI misused Section 702 to investigate Black Lives Matter protesters, congressional campaigns, and participants of the Jan. 6 Capitol riot.
Section 702 itself was the product of FISA’s role in President George W. Bush’s post-9/11 War on Terror, following revelations of the Act’s use by the National Security Agency to spy on Americans.
Meanwhile, similarly lambasted domestic surveillance tactics have taken advantage of location data to arrest and prosecute American citizens participating in demonstrations and protests, prompting companies and services like Google Maps to overhaul their privacy policies in 2023 — although these involved the use of legal warrants.
Andy Wong, advocacy director of Stop AAPI Hate, told Mother Jones that Congress’ decision to push the program through the new year for later reevaluation was a missed opportunity to protect citizens from such violations and thus prevent continued risk to communities. “They sort of dodged the responsibility here.”
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Congress’ new defense bill includes the extension of a highly-criticized surveillance program from the Foreign Intelligence and Surveillance Act.
