Should Congress Close the FBI’s Backdoor for Spying on American Communications? Yes.

Estimated reading time: 3 minutes

Should Congress Close the FBI’s Backdoor for Spying on American Communications? Yes.

All of us deserve basic protection against government searches and seizures that the Constitution provides, including requiring law enforcement to get a warrant before it can access our communications.  But currently, the FBI has a backdoor into our communications, a loophole, that Congress can and should close.

This week, Congress will vote on the Commerce, Justice, Science and Related Agencies Appropriations bill (H.R. 4505). Among many other things, this bill contains all the funding for the Department of Justice for Fiscal Year 2022 along with certain restrictions on how the DOJ is allowed to spend taxpayer funds. Reps. Lofgren, Massie, Jayapal, and Davidson have offered an amendment to the bill that would prohibit the use of taxpayer funds to conduct warrantless wiretapping of US Persons conducted under Section 702 of the FISA Amendments Act. We strongly support this Amendment.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) requires tech and telecommunications companies to provide the U.S. government with access to emails and other communications to aid in national security investigations–ostensibly when U.S. persons are in communication with foreign surveillance targets abroad or wholly foreign communications transit the U.S. But in this wide-sweeping dragnet approach to intelligence collection, companies allows government access and collection of a large amount of “incidental” communications–that is millions of untargeted communications of U.S. persons that are swept up with the intended data. Once it is collected, the FBI currently can bypass the 4th Amendment requirement of a warrant and sift through these “incidental” non-targeted communications of Americans — effectively using Section 702 as a “backdoor” around the constitution. They’ve been told by the FISA Court this violates Americans’ Fourth Amendment rights but it has not seemed to stop them and, frustratingly, the FISA Court has failed to take steps to ensure that they stop.

This amendment would not only forbid the DOJ from doing this activity, it would also send a powerful signal to the intelligence agency that Congress is serious about reform.

Take action

Tell your member of Congress to support this amendment today.

The DOJ is opposing this amendment, saying that it would inhibit their investigations and make them less successful in rooting out kidnappings and child trafficking. We’ve heard this argument before, and it’s just not convincing.

The FBI has a wide range of investigatory tools.  It gives a scary list of potential investigations that it says might be impacted by removing its backdoor, but for every single one of them, the FBI can get a warrant or use other investigatory tools like National Security Letters. What the DOJ elides in protesting this narrow amendment is that the FBI has gotten used to searching through already collected communications of Americans —overbroadly collected for foreign intelligence purposes — for domestic law enforcement purposes. But it is not the purpose of 702 to save the FBI the trouble of getting a warrant (FISA or otherwise) for domestic investigations as the law and the Constitution requires before it collects needed information from the telecommunications and Internet service providers. The FBI is in no way prohibited from using its long-standing powerful investigatory tools due to this amendment – it just can no longer piggy-back on admittedly over broad foreign intelligence collections.  

The government also elides that what it wants is to take advantage of Section 702’s massive well-documented over-collection to have a kind of time machine. There is a possibility that information collected by the NSA will be deleted before the FBI can get a warrant, but the FBI has not submitted any public (or as far as we can tell, classified) evidence that this is a major problem in practice or would have resulted in thwarted prosecutions — as opposed to just requiring a bit more effort by the FBI. But protecting Americans privacy is worth making the FBI follow the Constitution, even if it is a bit more effort.

The US Supreme Court has denied domestic law enforcement a general warrant — collecting first a broad swath of Americans’ communications then sorting through later what it may need. That is what the FBI is defending here, it is what the FISC raised concerns about and it is what this amendment will rightfully stop.

Tell your member of Congress to support this amendment today.

Take action

Tell your member of Congress to support this amendment today.

Published July 28, 2021 at 09:25PM
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