Congress reauthorizes the Foreign Intelligence Surveillance Act

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

A personal note.

Holidays always make me reflective. I am celebrating Passover this week, and I recognize that this is an incredibly tense time among the Abrahamic faiths in the U.S. and abroad. Just watching the news or logging onto Twitter or Instagram is stress inducing — the war in Gaza, the campus clashes, the military funding fights. I'd just like to put it out there that, out of view of these stories, there are millions of Jews, Muslims, Israelis, Palestinians, and Americans working in concert. There are thousands of peaceful campuses. Students and adults and diplomats and activists are having dialogue. Out of the headlines, many people are striving toward peace and reconciliation and praying for better days. Seek them out. And please, if you can, be one yourself. We need it now more than ever.

Quick hits.

1. The Supreme Court seemed divided on a lower court's ruling that blocked Oregon officials from prohibiting homeless people from sleeping in public spaces. (The case)
2. Israel's military intelligence chief resigned yesterday over the failure to stop Hamas's attack on October 7. (The resignation)
3. Columbia University held virtual classes yesterday as protests and counter-protests over Israel's war in Gaza engulfed the campus. Dozens of people have been arrested and suspended. Protesters were also arrested at Yale University. (The protests)
4. The Supreme Court will hear a case over whether the Biden administration can regulate ghost guns, firearms made privately without serial numbers. (The appeal)
5. On Monday, construction began on a $12 billion high-speed train linking Las Vegas to the Los Angeles area. (The train)

Today's topic.

FISA reauthorization. On Saturday night, President Biden signed legislation reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), the controversial warrantless surveillance program whose renewal had been held up by bipartisan concerns. Minutes after it lapsed at midnight on Friday, Senate Majority Leader Chuck Schumer (D-NY) announced a deal to vote on a package of amendments to the House-passed bill to reauthorize the FISA. The Senate approved the reauthorization 60-34.

Reminder: FISA was originally enacted in 1978 as a framework for gathering foreign intelligence, but the U.S. government wanted to make monitoring foreign terrorists easier in the wake of 9/11. In 2008, to capitalize on suspects using electronic communications like email serviced by U.S. companies, Congress passed the FISA Amendments Act. Those amendments included Section 702, which authorized the government to compel communications service providers based in the U.S. to share the communications of non-Americans located abroad without a warrant from a court — and without needing to show that the target is a suspected terrorist or spy. Section 702 has been renewed several times since then, and U.S. officials say it is crucial for disrupting terrorist attacks, cyber intrusions, and foreign espionage. The Biden administration credited the program for providing crucial intelligence in the 2022 killing of al-Qaeda leader Ayman al-Zawahiri. 

However, FISA’s warrantless surveillance also regularly exposes American citizens, revealing their private phone calls, emails, and text messages. When federal agents obtain that information, they can legally search it even though they are going through Americans' private communications.

According to Director of National Intelligence records, federal intelligence agencies performed over 100,000 warrantless backdoor searches of Americans' private communications in 2022, and about 3,000,000 the year prior. Perhaps most notably, Trump campaign associate Carter Page was caught up in warrantless FISA surveillance in 2016 (though Page was surveilled by traditional FISA wiretaps, not those authorized by Section 702). The FBI then used two surveillance warrants to eavesdrop on the Trump campaign leading up to and following the 2016 election. 

Citing this incident, former President Trump came out against the reauthorization of Section 702 a few weeks ago, which turned some members of the House against it. In the past year, U.S. officials have revealed that the FBI has abused FISA by querying the information of a member of Congress, participants in the George Floyd protests in 2020, and people who attended the January 6 riots at the U.S. Capitol.

What just happened? Because of the program’s persistent abuse, lawmakers in the House and Senate have pushed reform bills over the last two years. On Friday, several amendments were proposed in the Senate in an attempt to close what critics called civil liberty loopholes, but none garnered enough support for passage. One by Sen. Dick Durbin (D-IL) would have required the government to get a warrant to access Americans’ communications, but was rejected 42-50. In the end, Section 702 was renewed in largely the same form it existed in previously.

Legislators supporting Section 702’s renewal framed the need as urgent, though a recent ruling from the Foreign Intelligence Surveillance Court seemed to suggest that the government's authority to collect intelligence would remain operational for at least another year.

Today, we're going to examine some arguments from the right and left about the law, then my take.

What the right is saying.

• The right is mixed on the legislation, with many arguing Section 702 is vital to national security.
• Some criticize the law as a clear infringement of civil liberties.
• Others say critics on both the left and right misunderstand Section 702’s purpose.

In The New York Times, Matthew Waxman and Adam Klein wrote “government surveillance keeps us safe.”

“The latest version of the bill adds dozens of legal safeguards around the surveillance in question — the most expansive privacy reform to the legislation in its history. The result preserves critical intelligence powers while protecting Americans’ privacy rights in our complex digital age,” Waxman and Klein said. “Section 702 has supplied extraordinary insight into foreign dangers, including military threats, theft of American trade secrets, terrorism, hacking and fentanyl trafficking. In 2022 intelligence from 702 helped the government find and kill the al-Qaeda leader Ayman al-Zawahri, one of the terrorists responsible for Sept. 11.”

“Although Section 702 can be used only to target foreigners abroad, it does include Americans when they interact with foreign targets. Not only is such incidental collection inevitable in today’s globalized world; it can be vital to U.S. security. If a terrorist or spy abroad is communicating with someone here, our government must find out why,” Waxman and Klein wrote. “Recent years have shown Section 702’s great value for national security. But they have also revealed lax compliance at the F.B.I. The latest reauthorization boosts privacy without blinding our country to threats in today’s dangerous world.”

In RedState, Jeff Charles said “the FISA reauthorization vote shows how little Congress cares about protecting our rights.”

“It is not difficult to safeguard our God-given and Constitutional rights. The Fourth Amendment very clearly disallows the state from conducting unreasonable searches and seizures and stipulates that the authorities must obtain a warrant to justify spying on Americans. In light of this, why the hell would anyone who swore an oath to defend the Constitution want to let the state surveil Americans without going through the appropriate processes,” Charles asked. “The problem, as I see it, is that politicians from both parties know they will never be held accountable for the choices they make.”

“We can pretty much guarantee that during primary season, none of the lawmakers who continued empowering the state to violate our Fourth Amendment rights will have to fear being replaced because, by and large, the people are not paying enough attention to these issues. To keep one’s seat in Congress, one does not actually have to deliver results; they need only to remain popular enough to win enough votes to return them to D.C.”

National Review’s editors called Trump’s criticism of FISA “incoherent.”

“The provision of the Foreign Intelligence Surveillance Act (FISA) at issue is not the one exploited by Obama-era FBI leadership, in collusion with the Hillary Clinton campaign, to smear Trump as a Putin puppet. That statute was the original FISA,” the editors said. Section 702 “allows American intelligence agencies to surveil non-Americans reasonably believed to be outside the United States. This is just traditional spying, and conducting it is common sense, if only to defend against the aggressive anti-American operations of Chinese, Russian, and other skilled foreign intelligence services.”

“The allegations against Section 702 by Trump and a mix of populist, libertarian, and leftist critics are mostly bogus. The statute explicitly prohibits targeting Americans for surveillance,” the editors wrote. “Are Americans nevertheless intercepted in foreign-surveillance operations? Of course they are, incidentally. That is a fact of all policing… Most of the time, however, when the FBI seeks to search the database, it is because foreign agents are plotting against Americans. A warrant requirement would only delay access to intelligence that should be readily accessible. This would intolerably increase the danger that terrorist plots will lead to terrorist attacks.”

What the left is saying.

• The left opposes Section 702’s reauthorization, pointing to examples of unlawful surveillance of U.S. citizens under the law. 
• Some say Biden’s support of the bill undermines his purported concern for democracy.
• Others lament that meaningful reforms were stripped from the bill at the last minute.

In The Hill, Elizabeth Goitein argued the bill creates a “staggering” potential for abuse of power.

“Although Americans can’t be targeted per se, their phone calls, emails and text messages are inevitably swept up in enormous volumes, for the simple reason that Americans communicate with people around the world,” Goitein said. “In recent years, there have been multiple revelations of government abuse of Section 702. FBI agents have conducted warrantless searches of Section 702-acquired data for the communications of Black Lives Matter protesters, members of Congress, journalists and — in one case — more than 19,000 donors to a congressional campaign.”

“Under the House-passed bill, the government can compel the assistance of individuals or companies that provide any service at all, as long as they have access to the equipment (for instance, servers, routers or cell towers) on which communications are transmitted… Almost any business that provides wifi to its customers could be conscripted into service,” Goitein wrote. “Imagine placing the power to use every commercial landlord as an NSA agent into the hands of a future president with autocratic ambitions. In such a scenario, the stakes would be not just our civil liberties, but also our very democracy.”

In Jacobin, Branko Marcetic criticized Democrats for supporting “new spy powers that Trump could use.”

“As usual when it comes to radical expansions of US government surveillance, the issue boils down to an almost imperceptible change in the wording of a bill, which in practice will have vast implications for ordinary Americans’ privacy,” Marcetic said. “The language in question tweaks the existing law’s definition of an ‘electronic communication service provider’... that definition would be changed to include ‘any service provider’ in general with access to those same communications, or with access to ‘equipment that is being or may be used to transmit or store such communications.’”

“In maybe the most extreme bit of hypocrisy, the bill passed by as large a margin as it did partly thanks to an intense lobbying campaign from the Joe Biden White House, the same Joe Biden who has spent months and years now warning that Trump is ‘determined to destroy American democracy,’” Marcetic wrote. “You couldn’t get a more perfect summary of the state of Democratic politics, and the increasingly empty, self-serving rhetoric of ‘authoritarianism’ and ‘democracy’ that suffuses it.”

In Techdirt, Tim Cushing said the bill “keeps only the bad stuff” about Section 702.

“The government had a few years to sort this out, but as usual, the final call came down to the last minute… the Senate pushed through a two-year reauthorization — one pretty much free of any reforms. This happened despite there being a large and vocal portion of the Republican party seeking to curb the FBI’s access to these collections because some of their own had been subjected to the sort of abuse that has become synonymous with the FBI’s interaction with this particular surveillance program.”

“The reauthorization passed to the Senate from the House had been stripped of a proposed warrant requirement and saddled with an especially expansive definition of the term ‘electronic communication service provider.’... So, instead of reform, we’re getting an even worse version of what’s already been problematic, especially when the FBI’s involved,” Cushing wrote. “The version [that Biden signed] is the worst version… If you’re a fan of bipartisan efforts — no matter the outcome — well… enjoy your victory, I guess. But there’s nothing about this renewal debacle that can actually be called a win. Unless you’re the FBI, of course.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• My gut rejects this notion that Americans should ever have their privacy violated without a search warrant.
• The best argument to reauthorize Section 702 in its current form is that it's an extension of all kinds of policing, where innocent people are sometimes incidentally monitored.
• Still, there is far too much documented abuse and far too little certainty about Section 702’s value to renew it without major reforms. 

Indulge me in a silly hypothetical for a moment.

Let's say that I'm working on a story about some new German military technology. I connect with a defense contractor overseas who has a couple decades of experience working with European nations on their military defense and we end up having a 45-minute off-the-record phone chat. We start by talking for a few minutes about our personal lives — how he ended up in defense contracting and I in journalism, where we live, what our families are up to.

I pivot into why I called and start asking him a bunch of questions about who is interested in buying this new technology he’s developing, when we might see it go to market, and how it works. I ask some questions about his boss and his colleagues. I push him to chat with me on the record for a story, and he says he'll think about it.

As it turns out, though, a few weeks before I reached out to him, a Russian oligarch contacted him to inquire about the new technology. He took the call, but quickly ended it after only a few minutes. Unfortunately, U.S. intelligence agencies were monitoring that oligarch. They then put the defense contractor under surveillance, and my phone call to him was caught in the dragnet.

Should those intelligence agencies be able to listen to our phone call without a warrant? Should they be able to log what was said and file it away on a database somewhere? Should that log include personal information I shared about myself, a U.S. citizen with Fourth Amendment rights?

My gut instinct is a hard no. Federal agents should not be able to listen to my private phone calls without a warrant. I'm an American citizen, and I'm afforded certain rights and privileges — rights that I expect to exist regardless of whom I am speaking to. I've always felt strongly about privacy rights, and I feel even more strongly that we can't take our government's word on how narrowly they are going to interpret statutes granting them power like Section 702. History is replete with examples of them doing the opposite.

At the same time, some arguments certainly give me pause. National Review's editors argued (under “What the right is saying”) that Americans getting caught up in surveillance is a simple fact of policing: "When cops monitor a street gang, they unavoidably observe the activities of non-suspects. When DEA wiretaps a drug lord, it unavoidably intercepts conversations of family members and other bystanders. These incidental consequences are factored into statutory and court-prescribed 'minimization' limitations on their use and retention. Similarly, the communications of Americans are incidentally monitored in foreign surveillance, and are stored in a database."

I suppose that is all true, and a worthwhile thing to weigh when considering our own privacy rights. I'll also concede there is a lot I don't know about surveillance. Maybe if I got to sit in on a single intelligence briefing and realized how useful this monitoring was to protecting Americans I'd feel differently. President Biden certainly seemed to think that making that demonstration would convince senators when he urged classified briefings be sent to them ahead of this vote. A few days later, of course, the Senate voted to reauthorize Section 702 with minimal changes.

Here's the problem, though: The FBI has already abused this authority. As Elizabeth Goitein put it (under “What the left is saying”), "FBI agents have conducted warrantless searches of Section 702-acquired data for the communications of Black Lives Matter protesters, members of Congress, journalists and — in one case — more than 19,000 donors to a congressional campaign.” If you broaden the criticism to FISA as a whole, you can add January 6 protesters and Donald Trump's campaign to that list, too. One federal judge described the FBI's abuses of Section 702 as "persistent and widespread."

Even while operating with wide latitude (like being able to perform searches if they "reasonably believe" they will uncover foreign intelligence or evidence of a crime), the FBI has still violated the rules. On top of all that, I'm not totally convinced any of the terrorist plots that have been stymied necessitated allowing federal agents to gather Americans' communications without a warrant. I imagine some if not all of them could have been detected without infringing on the rights of U.S. citizens.

Even conceding that private communications from Americans might get caught up in day-to-day policing and that this program might genuinely keep us safer, something still feels deeply wrong about Section 702. In trying to imagine a healthy foreign surveillance program, the instances of Americans having their communications warrantlessly monitored should be scant, not abundant. The evidence of crime stopping should be profuse, not sparse. And FBI abuses should be non-existent, not “persistent and widespread.”

In the end, some senators, like Dick Durbin, have the information we don't and they still want to rein Section 702 in. Amendments like the one Durbin proposed were simple and to the point: If you want to access Americans' communications, you need a warrant. I don't think that should be controversial, and it's a shame our representatives weren’t capable of making it law.

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Your questions, answered.

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Under the radar.

Gen-Z is picking up a new nickname: “The toolbelt generation.” With the costs of college skyrocketing and the financial upside of a four-year degree becoming more contested, many members of Gen Z are instead opting for trade schools. Leaders of vocational nonprofits are insisting that skilled trades are making a comeback. "Folks have really prioritized a college education as a path to the middle class and a path to a cushy office job,” Lisa Countryman-Quiroz, CEO of Jewish Vocational Service, said. “We are seeing a trend among young people [of] opting out of universities. Just the crushing debt of college is becoming a barrier in and of itself." Data from the National Student Clearinghouse Research Center shows the number of students enrolling in vocational-focused community colleges increased 16% from 2022 to 2023. NPR has the story. 

Numbers.

• 59%. The percentage of articles in the President’s Daily Brief that contained information obtained under Section 702 in 2022, according to the Office of the Director of National Intelligence. 
• 94%. The percent decrease in FBI searches for information obtained under Section 702 on “U.S. persons” between November 2021 and November 2022. 
• 119,383. The number of FBI queries on people in the U.S. during that period. 
• 278,000. The approximate number of times the FBI improperly searched “a database of foreign intelligence” in 2020 and early 2021, according to court documents released in 2023. 
• 1.7%. The FBI’s rate of non-compliance for querying Section 702 data between 2021 and 2022.
• 48%. The percentage of Americans who said they believe it is sometimes necessary to sacrifice their rights and freedoms to prevent terrorism in a June 2023 poll from AP-NORC.
• 64%. The percentage of Americans who said they believed it is sometimes necessary to sacrifice their rights and freedoms to prevent terrorism in 2011. 

The extras.

• One year ago today we had just published a subscribers-only edition on how a bill becomes a law.
• The most clicked link in yesterday’s newsletter was the arrests of pro-Palestinian protestors at Columbia.
• Nothing to do with politics: A map of the new high-speed rail line to connect Los Angeles and Las Vegas.

Yesterday’s survey: 784 readers answered our survey on the separate funding bills with 85% supporting the $8.1 billion in aid for Taiwan, the most of any option. “This took too long. We look like idiots. There is broad support among the citizens and yet our system allows a few extremists to block crucial legislation,” one respondent said.

What do you think of the reauthorization of Section 702 of FISA? Let us know!

Have a nice day.

Researchers at Linköping University, Sweden, have developed a method for synthesizing hundreds of new materials that are so thin they’re practically two-dimensional. Materials that are incredibly thin, only a few atoms thick, exhibit unique properties that make them appealing for energy storage, catalysis, and water purification due to their large surface area in relation to their volume or weight. "In general, 2D materials have shown great potential for an enormous number of applications. You can imagine capturing carbon dioxide or purifying water, for example. Now it's about scaling up the synthesis and doing it in a sustainable way," says Johanna Rosén, professor in Materials physics at Linköping University. Science Daily has the story.

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