FISA Fight Final Score: Surveillance State 1, Bill of Rights 0

Patrick G. Eddington

Just shy of one year ago, the public learned that an FBI agent had conducted a query of the Foreign Intelligence Surveillance Act (FISA) Section 702 database for information on 19,000 American donors to a congressional campaign, among other episodes of 702 database query misconduct. The revelations, contained in a partially declassified Foreign Intelligence Surveillance Court (FISC) opinion, received massive media coverage and condemnation from House and Senate members across the political spectrum. The facts about these domestic surveillance abuses were not then and are not now in dispute.

Yet despite this clear evidence for the need to require a probable cause‐​based warrant to access the stored communications of Americans under FISA Section 702 (and this Senate floor speech on April 19 by Senator Mike Lee (R‑UT) is a legal clinic in that respect), over the last ten days efforts to mandate such a requirement were defeated in both chambers. The final bill, the Reforming Intelligence and Securing America Act (H.R. 7888), was signed into law by President Joe Biden on Saturday, April 20, just hours after a Senate majority stopped every attempt to improve the bill via amendments and passed it by a vote of 60–34.

Even worse, H.R. 7888 actually expands the reach of FISA Section 702 by broadening the definition of “electronic communications service provider” in a way that will encompass cloud‐​based storage companies, among others. That provision was condemned even by former Justice Department lawyers who have argued cases before the FISC.

To the extent that there’s any good news for Bill of Rights defenders in this otherwise outrageous and maddening outcome, it is this: we will do this all over again two years from now. For the first time, the FISA Section 702 provision has been extended for only two years—significantly less than the prior reauthorizations in 2012 and 2018.

The question is, will the outcome be any different the next time around?

Unless surveillance reformers change their approach (i.e., shift from a nonprofit‐​based advocacy and public education effort to a method with more political punch), the results may be the same or even worse.