Warrantless US Spying Is Set to Expire Soon. Let It Die


Surveillance technologies have historically restricted the freedoms of 
communities of color and immigrants in this country. This history continues 
today through a resurgent national security apparatus with emboldened 
nationalist tendencies. Members of Congress have the power to rein these 
surveillance mechanisms. At this moment, Section 702 of the Foreign 
Intelligence Surveillance Act (FISA) is pending reauthorization from Congress. 
This piece of legislation must be reformed in order to prevent dragnet 
surveillance, backdoor searches of phone and email records, and unlawful 
targeting of communities of color and immigrant communities. Unless these 
revisions are made, Congress should let the provision expire.

Section 702 allows for warrantless surveillance of conversations between people 
in the US and in foreign countries. The law passed in 2008 during the George W. 
Bush's presidency, was extended by the Obama administration, and is now set to 
expire at the end of 2017, unless Congress reauthorizes the provision—a move 
the Trump administration supports.

Rebuttals to questions of surveillance often go something like this: 'If you’ve 
got nothing to hide, then you shouldn’t be worried.' But a review of American 
history points to the same groups being routinely spied on by the government: 
black and native bodies, immigrants, poor communities, and anybody deemed as an 
“other” or a threat to national security. High-profile cases of surveilled 
prominent figures include civil rights leaders Martin Luther King Jr. and Cesar 
Chavez, who were both monitored by the FBI.

More recently, cities like Baltimore experienced dragnet surveillance after 
protesting against the police murder of Freddie Gray. Black Lives Matter 
activists in Ferguson, Missouri became targets of surveillance. Muslim 
communities have long withstood surveillance of their neighborhoods, mosques, 
and community leaders. If history is any indicator, the net cast on those 
suspected of being threats to our nation’s safety is vast—and in a time where 
much of the nation is intent on resisting and dissenting, this puts much of the 
country at risk of being surveilled. Furthermore, surveillance, particularly 
enabled under 702, is nefariously opaque.

Proponents of Section 702, such as the Heritage Foundation, and Trump’s 
homeland security and counterterrorism advisor Thomas Bossert, argue that 
oversight protocols and existing language in the provision will prevent 
significant overreach. In an op-ed in the New York Times published earlier this 
year, Bossert claimed that Section 702 doesn’t allow for targeting of US 
citizens, emphasizing that the provision “expressly forbids intentional 
targeting” and that an individual court order supported by probable cause is 
needed to surveil citizens and foreigners inside the US.

But newly declassified memos reviewed by The Hill revealed a slew of violations 
by the NSA and FBI during the Obama administration, proving that although 
intentional targeting of US citizens may not be allowed, citizens' data is 
nonetheless being intercepted—and searched. Among the various violations cited 
in the memo  are “numerous overcollection incidents,” and “the misuse of overly 
broad queries or specific US person terms to search through NSA data.”

Immigrants are also largely at risk of being surveilled through Section 702’s 
so-called upstream monitoring, which allows communication to a friend or family 
member outside of the country (or browser history, chat logs), to be searched 
for potential “selectors” or keywords of interest. This means that more than a 
quarter of the US population—more than 84 million people—are at risk of having 
their data intercepted.

We recently visited our nation’s capitol with a delegation of community leaders 
and policy advocates from across the country to meet with Senators Al Franken 
(D-MN), Kamala Harris (D-CA), and Ron Wyden (D-OR), along with Representatives 
Justin Amash (R-MI) and Keith Ellison (D-MN), to discuss the impacts of new 
surveillance technologies on immigrant communities and religious minorities. 
Among the solutions proposed was to reform Section 702 to close the backdoor 
search loophole, and prevent overly broad law enforcement from being used to 
target immigrants and citizens of color, religious minorities, and activists.

Last month, the Center for Media Justice joined over two dozen civil rights and 
civil liberties groups including the ACLU and Color of Change to send a letter 
to the House Judiciary Committee recommending reforms to the provision. History 
shows that intelligence programs without adequate oversight, demonstrated by 
COINTELPRO and the contents of the Edward Snowden revelations, inevitably 
overstep their mandates.

Congress should recall the origins of the fourth amendment in this moment: 
Let’s stop putting mass surveillance technologies in the hands of intelligence 
agencies, especially with nothing but the misplaced hope they will do the right 

Ken Montenegro (@kmontenegro) is national vice president of the National 
Lawyers Guild in New York. Steven Renderos (@stevenrenderos) is organizing 
director at the Center for Media Justice in Oakland, California. WIRED Opinion 
publishes pieces written by outside contributors and represents a wide range of 
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