Every time Congress reauthorizes Section 702 of the Foreign Surveillance Intelligence Act (FISA), we're told it's only used to surveil foreign targets. That's true— until Americans get swept up in the dragnet and agencies exploit loopholes to search their communications without a warrant.
Despite the panic from Washington, missing the reauthorization deadline doesn't suddenly shut down surveillance by intelligence agencies. Existing certifications remain in place. The spying continues.
To understand how far we've gone off the rails, it helps to remember why Congress created FISA and the Foreign Intelligence Surveillance Court (FISC) in the first place. The history began with what was then one of the largest government surveillance scandals in American history.
FBI Director J. Edgar Hoover's COINTELPRO operation was launched in 1956 to monitor suspected Communists. Like any government program, it steadily expanded, and the Bureau included political activists, civil rights leaders, and other groups it deemed troublesome in their targeting.
In the 1960s and into the 1970s, intelligence agencies including the FBI, CIA, NSA and military intelligence units conducted widespread surveillance of Americans without warrants. The targets included anti-war activists, civil rights leaders, journalists, political organizations, and even members of Congress. When a series of media reports exposed these widespread intelligence abuses, the U.S. Senate formed the Church Committee to investigate, led by Idaho Sen. Frank Church.
The committee uncovered extensive domestic spying programs, including warrantless wiretaps, the opening and copying of private mail, monitoring political activists, surveillance of journalists and religious groups. These government entities created intelligence files on hundreds of thousands of American citizens.
Back when America had a more functional, trustworthy press, the abuses exposed by the Church Committee shook the nation. Americans learned that intelligence agencies had accumulated enormous power with little oversight and even fewer safeguards. Congress responded by passing the Foreign Intelligence Surveillance Act in 1978 but this was not the FISA we know today.
The purpose then was not to expand government surveillance but to restrain it. Lawmakers created the Foreign Surveillance Intelligence Court to ensure that intelligence agencies could separately pursue legitimate foreign threats while respecting the constitutional rights of American citizens.
Under this original FISA, the government would identify a foreign target, go to FISC with the information, and the court would review the evidence and either approve or deny the surveillance.
In the wake of the September 11, 2001, Islamic terrorist attacks, Congress and President George W. Bush concluded that the existing FISA framework was inadequate to address the threat of jihad. In the name of national security, they expanded federal surveillance powers, most notably through Section 702, which allows the government to collect communications involving foreign targets overseas without individual warrants. After much haggling, Congress included a sunset provision requiring periodic review and reauthorization.
Now, under Section 702, the FISC approves broad certifications rather than individual warrants. Agencies select targets internally allowing sweeping surveillance to occur. When Americans communicate with foreigners such as businesspeople, journalists, military families, missionaries, students, or ordinary citizens often do, their communications are swept into government databases as well. The government calls this "incidental collection."
The real constitutional problem arises when these agencies search those databases using the names, phone numbers, email addresses, or other identifiers of American citizens in the name of solving crimes. At that point, the government is no longer pursuing a foreign target; it is examining the private communications of an American citizen without a probable cause warrant.
The most recent FISC certifications were approved in March and remain valid for a year. Missing the reauthorization deadline did not suddenly halt surveillance authorities. Intelligence agencies continue operating while Congress debates reforms and constitutional safeguards.
Congress should use this opportunity to restore the distinction between foreign intelligence collection and domestic surveillance. If the government wants to monitor foreigners overseas, it can do so without Section 702. If the government wants access to private communications from an American citizen, the Fourth Amendment to the U.S. Constitution requires the government to obtain a warrant from a judge based on probable cause.
America’s Founders gave us a Fourth Amendment because they didn't trust government with unchecked power. Neither should we.
