From the member’s despatch | Week XII, MMXXV
Last April, the U.S. Congress reauthorized Section 702 of the Foreign Intelligence Surveillance Act, which gives the Federal Bureau of Investigation the right, without a warrant, to look at the emails of American citizens and permanent residents if they’re communicating with foreigners under surveillance—a practice known as “backdoor” searches. Each year, the FBI conducts tens of thousands of these searches.
The vote in Congress was contentious, with members of both parties voting for and against reauthorization. When the bill finally cleared the Senate by a vote of 60 to 32, the Democratic Sen. Chuck Schumer, then the leader of the Senate majority, said, “In the nick of time, bipartisanship has prevailed here in the Senate.”
But then this January, a federal judge in New York ruled that the FBI’s searches conducted under Section 702 infringed on the Fourth Amendment privacy rights of a U.S. resident. While the judge only ruled that the FBI had been overly intrusive in this particular case, it might nonetheless set a precedent that the law violates the Constitution.
Why is Section 702 so contested?
Proponents of the law argue that it’s indispensable for U.S. national security, while opponents claim it infringes on people’s privacy. But it’s not just a matter of privacy rights, Anthony Gregory says in American Surveillance: Intelligence, Privacy, and the Fourth Amendment. Section 702 goes to the heart of U.S. foreign policy: Every country conducts surveillance in pursuit of its foreign policy goals, which means it has to balance the interests of privacy versus security—but the United States’ foreign intelligence apparatus is truly massive. The country has some 800 military bases around the globe; many of its allies rely on it for sharing critical intelligence; and the U.S. has—and has developed—much of the world’s best surveillance technology.
Such an enormous foreign-intelligence operation will almost inevitably result in frequent overreach inside the United States. So when critics cite the FBI’s Section 702 overreaches as a privacy problem, Gregory says, they’re missing what may be the fundamental cause of that overreach: American foreign policy. Questioning Section 702, if carried to its logical conclusion, means questioning U.S. foreign-intelligence gathering, which is in its way a form of questioning the United States’s role internationally.
Which might help explain the otherwise difficult-to-explain matter of why U.S. Director of National Intelligence Tulsi Gabbard, facing her Senate nomination hearing in January, reversed her previously staunch opposition to Section 702. Whatever her motives for the switch, it would have reassured at least some skeptical senators that she’ll be on the same page with them when it comes to the basic needs of the country’s foreign policy—and the surveillance practices it’s come to depend on.
