Stop the “Biden Big Brother Better” Law

Unfortunately, betting on the triumph of constitutional rights on Capitol Hill remains a fool’s errand.

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Don’t “trust any bill so large that it has to be delivered by handcart,” warns Sen. Mike Lee (R-UT), the top Senate opponent to a rubber stamp reauthorization of federal surveillance powers. What bureaucratic rascality could be hidden in the 3000+ pages of the 2024 National Defense Authorization Act? Is this the “Biden Big Brother Better” scheme many conservatives fear?

Section 702 of the Foreign Intelligence Surveillance Act will expire on December 31 unless Congress reauthorizes the provision. Biden appointees and FBI chief Christopher Wray seek to stampede Capitol Hill to perpetuate the law with no real reform. But the Deep State cheerleading squad is encountering fierce opposition on the Hill.

Congress enacted Section 702 of the Foreign Intelligence Surveillance Act in 2008, which authorizes the National Security Agency to surveil targets in foreign nations. The NSA vacuums up vast amounts of information as part of that surveillance and then permits the FBI to sift through its troves. The Electronic Frontier Foundation warned more than a decade ago that Section 702 “created a broad national-security exception to the Constitution that allows all Americans to be spied upon by their government while denying them any viable means of challenging that spying.” Professor David Rothkopf explained in 2013 how Section 702 worked: “What if government officials came to your home and said that they would collect all of your papers and hold onto them for safe-keeping, just in case they needed them in the future. But don’t worry…they wouldn’t open the boxes until they had a secret government court order…sometime, unbeknownst to you.”

Actually, the law in practice is much worse.

From the beginning, federal agencies brazenly lied about the number of Americans whose privacy was ravaged. In 2014, Former NSA employee Edward Snowden provided the Washington Post with a cache of 160,000 secret email threads that the NSA intercepted. The Post found that nine out of ten account holders were not the “intended surveillance targets but were caught in a net the agency had cast for somebody else.” Almost half of the individuals whose personal data was inadvertently commandeered were American citizens. The files “tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes,” the Post noted. If an American citizen wrote an email in a foreign language, NSA analysts assumed they were foreigners who could be surveilled without a warrant.

Despite Snowden’s revelations and other scandals, Congress reauthorized Section 702 in 2018. But Congress did oblige the feds to publicly disclose how often the FBI unjustifiably violated Americans’ privacy by snooping in the NSA catch-all archives.

Last year, the feds revealed that “fewer than 3,394,053” Americans’ privacy had been zapped by FBI warrantless searches using Section 702. Why didn’t the feds use an alternative headline for the press release: “More than 320,974,609 Americans not illegally searched by the FBI”? That report was issued by the Office of Civil Liberties, Privacy, and Transparency of the Office of the Director of National Intelligence. But there was scant transparency aside from a raw number that raised far more questions than it answered.

Almost two million of those searches involved an investigation of Russian hacking. Yet there aren’t that many hackers in the United States. The State Department’s Global Engagement Center presumed that anyone whose tweets agreed with a position of the Russian government should be banned by Twitter for being a Russian agent. Did the FBI use a similar “catch-all” standard to justify pilfering two million Americans’ email and other online data?

In May, a heavily redacted FISA Court decision revealed that the FBI continued exempting itself from the Constitution. For each American that the FISA Court authorized the FBI to target, the FBI illicitly surveilled almost a thousand additional Americans. The FBI admitted to conducting 278,000 illicit searches of Americans in 2020 and early 2021 (the period covered by the FISA Court ruling released in May 2023).

The FBI seems to have presumed that any American suspected of supporting the January 6, 2021 Capitol ruckus forfeited his constitutional rights. An FBI analyst exploited FISA to unjustifiably conduct searches on 23,132 Americans citizens “to find evidence of possible foreign influence, although the analyst conducting the queries had no indications of foreign influence,” according to FISA Chief Judge Rudolph Contreras. The FBI also routinely conducted warrantless searches on “individuals listed in police homicide reports, including victims, next-of-kin, witnesses, and suspects.” Previously, the FISA court revealed that the FBI had conducted illegal searches on people who notified the FBI of crimes, repairmen entering FBI facilities, and even chumps who volunteer for the FBI “Citizen Academy” program.

Chief Judge Contreras lamented that FBI “compliance problems…have proven to be persistent and widespread.” For 20 years, FISA judges have whined about FBI agents lying to the court. As long as the FBI periodically promises to repent, the FISA Court entitles them to continue decimating the Fourth Amendment.

FBI officials stress that any violations of Americans’ privacy is “incidental.” Since the FBI didn’t intend to violate Americans’ rights, it was a no-fault error—or millions of no-fault errors. There is no chance that police will adopt the same standard for absolving drunk drivers who did not intend to kill anyone they crashed into. Even when a media star such as Tucker Carlson may have been pulled into the 702 mire, the system manages to whitewash itself.

House Republicans, led by Rep. Jim Jordan of Ohio, are pushing a bipartisan reform of 702 by requiring the FBI to get a warrant from a federal judge for most of its queries to the NSA database. Jordan’s proposal would also sharply reduce the number of FBI officials with access to the NSA trove. Members of the House Intelligence Committee, on the other hand, are pushing cosmetic reforms and perpetuating the status quo.

Section 702 may receive a four-month extension as part of a deal to protect members of Congress’ upcoming vacations. If the law is extended, it is unlikely that there will be any honest or dogged investigation of 702 abuses between now and April. Conservative firebrand Rep. Chip Roy (R-TX) denounced the proposed four month extension as “absurd.” What is the point of extending the FBI’s current surveillance crime spree? 

When FISA was up for renewal 11 years ago, I tweeted, “Only a fool would expect members of Congress to give a damn about his rights and liberties.” There is a stronger pushback against the FISA regime this time around though Sen. Lee justifies wonders if reform opponents are “illiterate.” Unfortunately, betting on the triumph of constitutional rights on Capitol Hill remains a fool’s errand. 

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