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What to Know About the Coming Fight in Congress Over Mass Surveillance
Lawmakers should not renew Section 702 without fundamental reforms to protect Americans' privacy.
Apr 16, 2023
One of the most sweeping surveillance statutes ever enacted by Congress is set to expire at the end of this year—creating an important opportunity to rein in America's sprawling surveillance state.
Section 702 of the Foreign Intelligence Surveillance Act permits the U.S. government to engage in mass, warrantless surveillance of Americans' international communications, including phone calls, texts, emails, social media messages, and web browsing. The government claims to be pursuing vaguely defined foreign intelligence "targets," but its targets need not be spies, terrorists, or criminals. They can be virtually any foreigner abroad: journalists, academic researchers, scientists, or businesspeople. And in the course of this surveillance, the government casts a wide net that ensnares the communications of ordinary Americans on a massive scale—in violation of our constitutional rights.
As Congress debates the reauthorization of Section 702, it's vital that we tell our representatives in Congress that we want an end to warrantless mass surveillance. Here's what you need to know to follow the debate and speak up for your right to privacy.
1. The NSA uses Section 702 to conduct at least two large-scale surveillance programs.
The government conducts at least two kinds of surveillance under Section 702:
PRISM: The NSA obtains communications—such as international messages, emails, and internet calls—directly from U.S. tech and social media companies like Facebook, Google, Apple, and Microsoft. The government identifies non-U.S. person accounts it wishes to monitor, and then orders the company to disclose all communications and data to and from those accounts, including communications with U.S. persons.
Upstream: Working with companies like AT&T and Verizon, the NSA intercepts and copies Americans' international internet communications in bulk as they flow into and out of the United States. The NSA then searches for key terms, such as email addresses or phone numbers, that are associated with its hundreds of thousands of foreign targets. Communications determined to be to and from those targets—as well as those that happen to be bundled with them in transit—are retained in NSA databases for further use and analysis.
Critically, while Section 702 does not allow the NSA to target Americans at the outset, vast quantities of our communications are still searched and amassed in government databases simply because we are in touch with people abroad. And this is the bait-and-switch: Although the law allows surveillance of foreigners abroad for "foreign intelligence" purposes, the FBI routinely exploit this rich source of our information by searching those databases to find and examine the communications of individual Americans for use in domestic investigations.
2. Section 702 surveillance is expanding.
The scale of Section 702 has been growing significantly over time, meaning more and more Americans are caught in this net.
When the government first began releasing statistics, after the Snowden revelations in 2013, it reported having 89,138 targets. By 2021, the government was targeting the communications of a staggering 232,432 individuals, groups, and organizations. Although the government often seeks to portray the surveillance as "targeted" and narrow, the reality is that it takes place on a massive scale.
Indeed, the government reported that in 2011, Section 702 surveillance resulted in the retention of more than 250 million internet communications (a number that does not reflect the far larger quantity of communications whose contents the NSA searched before discarding them). Given the rate at which the number of Section 702 targets is growing, it's likely that the government today collects over a billion communications under Section 702 each year. But these statistics tell only part of the story. The government has never provided data on the number of Americans who are surveilled under PRISM and Upstream, a number that is surely also increasing. That is a glaring gap in its transparency reports.
3. Section 702 has morphed into a domestic surveillance tool.
Although Congress intended Section 702 to be used for counterterrorism purposes, it's frequently used today to pursue domestic investigations of all kinds. Both the FBI and CIA have access to some of the raw data produced by this surveillance, and they increasingly use that access to examine the private communications of Americans they are investigating—all without a warrant.
FBI agents routinely run searches looking for information about Americans as part of criminal investigations, including those that have nothing to do with national security. Based on the most recent reporting, agents conduct millions of these U.S. person queries—also known as "backdoor searches"—each year. The only limitation on backdoor searches is that they must be "reasonably likely" to retrieve foreign intelligence or evidence of a crime.
The standard for conducting backdoor searches is so low that, without any showing of suspicion, an FBI agent can type in an American's name, email address, or phone number, and pull up whatever communications the FBI's Section 702 collection has vacuumed into its databases over the past five years. These searches are a free pass for accessing constitutionally protected communications that would otherwise be off-limits to the FBI, unless it got a warrant.
Evidence that agents have refused to comply with this low bar for conducting searches has piled up. Agents have violated the FBI's own rules over and over, accessing Americans' private communications without any legitimate purpose. They have dipped into Section 702 data for information about relatives, potential witnesses and informants, journalists, political commentators, and government officials, including a member of Congress.
4. Section 702 violates our constitutional rights, but the courts have failed to intervene.
The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. Government agents are required to obtain a warrant to access our emails, online messages, and chats. Large-scale, warrantless surveillance of Americans' private communications is at odds with this basic constitutional principle.
Section 702 also violates the Constitution by inhibiting freedom of speech and association. The reasonable fear that the U.S. government is spying on communications may deter journalists, lawyers, activists, and others from communicating freely on the Internet. We all have a right to exchange messages with our friends, family, colleagues, and clients abroad without worrying that the government is reading over our shoulder.
Because Section 702 is unconstitutional, the ACLU and others have attempted to challenge it in court. But the courts have failed to protect our constitutional rights. Instead, courts have repeatedly dismissed civil cases challenging Section 702—citing government claims of secrecy—and have declined to rule on claims in criminal cases that the government's backdoor searches violate the Fourth Amendment. This year, we brought one of these cases to the Supreme Court, but it refused to consider it.
5. Congress has the power to stop Section 702 surveillance.
Given the courts' inaction, it is up to Congress to stand up for our rights. Fifteen years ago, Congress enacted Section 702. Members of Congress should not vote to renew this law without fundamental reforms to protect Americans' privacy.
These reforms should include:
- Putting an end to rampant backdoor searches of Americans by requiring agents to obtain a warrant before searching Section 702 databases for an American's private information.
- Narrowing the scope of Section 702 surveillance by imposing stricter rules on who the government can "target," thereby limiting the number of Americans whose communications are swept up in the course of this spying.
- Limiting how long the government can retain information collected under Section 702 and how the NSA shares that information with other agencies.
- Ensuring that the government notifies individuals when Section 702 information is used against them in court and provides those individuals with sufficient information to obtain full and fair court review.
- Increasing transparency about the number of Americans' communications searched and collected through Section 702 surveillance.
Beyond reforming Section 702 itself, Congress should also adopt broader safeguards that protect Americans in the face of bulk surveillance and strengthen court oversight when the government engages in spying for intelligence purposes.
Over the next year, the ACLU will be seizing on this moment to press Congress to reclaim our privacy rights. We invite you to join us by sending a message to your representatives now.
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The US Is Guantánamo's Greatest Captive
We weren't the only victims of Guantánamo: All Americans and America's values and justice system were as well.
Feb 24, 2023
It was 21 years ago this month that I was flown in the belly of a U.S. cargo plane, hooded, blindfolded, gagged, and chained in an orange jumpsuit, for over 40 hours. I didn't know where I was being taken, or why.
My journey into the unknown started when I was sold to the CIA as an "Egyptian Al-Qaida general" in 2001 after the U.S. invaded Afghanistan. I was 18 years old, and I am from Yemen. After I was imprisoned for around three months in a black site in Afghanistan, I was taken to Kandahar military prison, an airbase that served as a transit station to the unknown. I wasn't the only one being held there.
When a huge cargo plane landed in Kandahar three weeks later, we all knew that some of us would disappear. Without being able to see, hear, or speak, we were dragged to the first plane blindfolded, and then chained to the floor. It was a journey of pain and suffering. When the plane eventually landed, we hoped it would be the end to our suffering. It wasn't. It was only the beginning of a longer, more brutal journey.
Without being able to see, hear, or speak, we were dragged to the first plane blindfolded, and then chained to the floor.
Soldiers never seem to get tired of the beating and shouting. When the second flight ended, it was still not the end of the journey. The U.S. Marines snatched and dragged me onto a bus, and then onto a ferry. Where was I going? The first clue came from the sea, which was the first friend who welcomed me. A Marine shouted in English and an Arab Marine translated: "You are under the control of the U.S. Marines!" They continued to shout and physically assault us for the rest of the way.
The ferry eventually docked and a bus took us on the final leg of the journey. We were disembarked by being snatched, one after another. I was forced to sit on my knees for hours. The duct tape over my mouth blocked my screams. Every cell in my body was screaming but no one could hear my cries. They could see the pain, and I felt like maybe their twisted humanity was screaming back, too.
After going through the processing station—where we experienced humiliation and degradation over and over again—soldiers dragged my naked body over sharp gravel to a cage where an IRF (Immediate Reaction Force) team piled on top of me and started removing the chains violently; then the hood, goggles, earmuffs, and the duct tape. Soldiers shouted into my ears: "DETAINEE 441! STOP RESISTING!" Resisting? I was barely breathing. Without knowing it, what they did at that moment was introduce the word "resist" into my mental landscape. That's what I needed to do; I just had no idea how.
At night, it took a while for my sight to come back, but it was still blurry. All I could see was an ocean of orange figures caged just like me, all I could hear were rattling chains, slamming doors, soldiers shouting in their loudest voice, "SHUT THE F**K UP, DON'T LOOK AT ME, LOOK DOWN, NO TALKING!" The dogs barking in the near distance sounded less aggressive than them. The barking never stopped. As in never. It sounded as though they were protesting at the inhumane treatment in their own way.
On my first morning in Guantánamo Bay Detention Camp—for that is where I was—I took a long look around me. I found myself caged in a rose chain-link cage where even animals wouldn't survive. There were many others there too. I could see swollen faces with bruises, black eyes, shaved heads and faces, split lips, and bleeding wounds. We all looked the same. It was like a signature that the soldiers wanted to leave on us all. U.S. President George W. Bush and his administration needed to prove that they were "winning" the "War on Terror," so they called us the worst of the worst.
We were dragged to this unknown place from different parts of the world; some of us were sold for a bounty and some were handed over to the CIA by their own governments. It was the first time in history that such a thing was done: There we were; 800 men and children—yes, children—from 50 nationalities, speaking over 20 different languages, having different mindsets and cultures, snatched and flown to a dark hole hidden from the rest of the world. This American prison camp wasn't even in America.
Everything was taken from us, and we became just orange figures with numbers printed on a bracelet locked on our wrists. Our captors stripped us of our freedom and imprisoned our bodies and wanted to control us and deny our humanity, but they failed to understand that what really makes us unique individuals are characteristics such as our names, values, relations, morals, beliefs, ethics, emotions, memories, language, knowledge, experiences, talents, feelings, dreams, nationalities and, of course, our innate distinctive humanity. These were part of another DNA, and a survival kit which the U.S. government didn't want to know about. They thought that they could control our bodies and freedom, but they would never control our hearts and souls.
Yes, we were isolated and disconnected from our families and the rest of the world, but even in America's dark hole, life won. We created our own world. Yes, we were tortured and abused, but we also sang, danced, resisted, and survived. Also, we soon found other generous guests at Guantánamo who came to visit us regularly, who challenged the U.S. restrictions and never had CIA clearance to visit. They came to share our meals, to listen to us, and to tell us that everything will be okay. We became friends and families with the iguanas, cats, birds, and banana rats.
Guantánamo started with a selection of Muslims from around the world, but it kept changing, evolving, and growing. We lived through Camp X-Ray, Camp Delta, Camp 5, Camp 6, Camp Echo, and others. We went through the torture programs and abuse by interrogators, psychologists, and a whole host of camp staff. We went on hunger strike to protest against the torture and injustice, only to be tortured more. We lived through all the years of Guantánamo: We lived through its Dark Age, its Golden Age, and back again to the Dark Age. With each year we grew older and our imprisonment only settled into us more deeply. Our captors got more creative in developing torture techniques to break us and to try to turn us into something we were not.
To survive through the darkness in that dark hole, we only had each other and whatever makes U.S. human beings. We were fathers, husbands, brothers, and sons from different parts of the world. Some of us were teachers, doctors, soldiers, commanders, journalists, lawyers, tribal elders, mafia men, poets, and professors; and some were spies. We had no shared life before Guantánamo, nothing in common. At first, we started introducing ourselves to each other, and getting to know each other. I wish our captives had taken time to get to know who we really were as well, instead of just needing to prove that we were hardened terrorists.
The cycle of hardship and the torture we endured forged strong bonds of brotherhood and friendship that helped us to survive.
The cycle of hardship and the torture we endured forged strong bonds of brotherhood and friendship that helped us to survive. We started developing a new shared life and a new "us" at Guantánamo. Our brains started constructing new memories, relations, knowledge, and experiences, but everything related back to and was based on Guantánamo life. Sharing our knowledge, experience, and culture with each other created a beautiful Guantánamo where we sang songs in different languages, danced dances from different cultures, and laughed and cried together. After years, we grew together and became part of each other's lives and memories. Guantánamo became part of us and part of our life. Guantánamo kept growing, evolving, and changing, feeding on our lives and humanity. With it, we grew old too.
We weren't the only victims of Guantánamo: All Americans and America's values and justice system were as well. There were many Americans who came to work in the detention camp, and they became victims too when they refused to abandon their humanity and treat us badly. Some took a stand against the system and were imprisoned; others were fired or demoted. We fought for them as much as we fought for each other because they were humans and victims too, regardless of their nationality or which side they were on. Injustice has no boundaries, color, or nationality. As we were living in Guantánamo, we didn't want anyone else to experience it.
Through the Dark Age of 2002-2010, we protested and carried out hunger strikes for years. We fought back as much as we could; we learned from each other and taught each other. In Guantánamo's Golden Age we learned English and art; we painted and we made ships, cabinets, trees, all from remnants of trash and leftover cardboard.
In Guantánamo, I grew up, from a young boy to a caged man. My world was Guantánamo and it's where half of my life was taken, where days, months, and years were the same.
Then after around 15 years, I was forced to leave Guantánamo the way that I was taken there, hooded and chained. When they came to tell me about my release, they told me, "You have no choice." I made peace with Guantánamo in Guantánamo and made the decision that it wouldn't change me; it's part of me and of who I am.
The whole world agrees that Guantánamo is a stain on our humanity and one of the biggest human right violations of the 21st century. There are those who tortured and abused us at Guantánamo who are still bragging about their time there and their work. Their humanity was the first real victim of that place.
Despite all these reflections, though, Guantánamo hasn't left us yet. Even today, there are 34 men still in Guantánamo, 20 of whom have been cleared for release. There are many calls for the closure of America's black hole detention center. For us, closing Guantánamo does not only mean shutting down the facility, but also there being full accountability for the U.S. government for what happened there: acknowledgment of the cruel and inhumane treatment, a full and unreserved apology, and reparations for the victims.
Guantánamo symbolizes oppression, injustice, torture, and lawlessness. In this way, Guantánamo is now everywhere, and I can say—in the strangest of ironies—that even though we were prisoners of the U.S. destructive "War on Terror", the United States is and always has been a prisoner of its own violence. Guantánamo is yet another chapter of this violence and one whose legacy will live on long after the prison is closed. The United States of America itself is Guantánamo's greatest captive.
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ACLU Sues CIA, DOJ, and NSA for Records About Warrantless Spying on Americans
The legal group argues that information about the surveillance program "is key as Congress considers reauthorizing Section 702—the law used to defend this unconstitutional spying."
Feb 03, 2023
The ACLU on Friday filed a federal lawsuit against top U.S. intelligence agencies that have failed to respond to public records requests for information about a "sweeping law that authorizes the warrantless surveillance of international communications," including those of Americans.
The suit, filed in the U.S. District Court for the Southern District of New York, targets the Central Intelligence Agency (CIA), Department of Justice (DOJ), National Security Agency (NSA), and Office of the Director of National Intelligence (DNI).
"Section 702 has morphed into a domestic surveillance tool for the FBI."
In December, the ACLU requested "recent Foreign Intelligence Surveillance Court (FISC) opinions concerning the government's surveillance activities, including those conducted pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA)."
According to the ACLU's complaint, which was first reported on by Axios, "to date, none of these defendant agencies has released any responsive records," despite their legal obligation to respond to such requests within 20 working days.
"Though Section 702 is justified as a counterterrorism tool, in reality it permits surveillance far beyond what is needed to protect national security," the ACLU explains on its website. It continues:
It allows the government to target foreigners abroad if it believes they possess "foreign intelligence information"—a term so broadly defined that it can include ordinary information about foreign affairs that has nothing to do with national security. This means that targets of surveillance could include human rights defenders, journalists, whistleblowers, or business owners. The government collects the personal information of these individuals—including any communications they may have with people in the U.S.—and stores it in databases for years, and in some cases, indefinitely.
With Section 702 set to expire at the end of the year, the complaint explains, Congress in the coming months "will consider whether to reauthorize these surveillance powers and will newly examine the breadth and intrusiveness of the digital searches the government conducts under this authority."
"In 2021, the FISC took the unusual step of extending its review of the government's annual Section 702 application, in order to consider novel or significant issues raised by the proposed surveillance," the document notes. "But the government has not released the court opinions that resulted from that review, even though they bear directly on the public's understanding of the surveillance powers the government seeks to wield under Section 702."
"Timely disclosure of these FISC opinions is vitally necessary to an informed debate about whether these surveillance powers should be reauthorized or reformed," the filing argues.
\u201cBREAKING: We\u2019re suing the NSA, CIA, and DOJ to learn more about the mass surveillance of our texts, emails, and calls with friends and family abroad.\n\nThis information is key as Congress considers reauthorizing Section 702 \u2014 the law used to defend this unconstitutional spying.\u201d— ACLU (@ACLU) 1675440982
Echoing that argument, Patrick Toomey, deputy project director for the ACLU's National Security Project, told Axios that "these opinions are essential to an informed public debate, and the government should release them immediately."
Toomey took aim at the Federal Bureau of Investigation, which falls under the DOJ. He said that "Section 702 has morphed into a domestic surveillance tool for the FBI."
Axios pointed out that the ODNI "disclosed in an annual report in April that the FBI conducted as many as 3.4 million searches of Americans' data in 2021 that was previously collected through 702."
Toomey asserted that "before Congress votes on reauthorizing this law, Americans should know how the government wants to use these sweeping spying powers."
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