President Joe Biden has an unprecedented opportunity to restore faith in America's intelligence agencies--if he seizes this opportunity to make a clean break with the practices of the past 20 years.
The era begun on 9/11 featured the growth of government secrecy, mass surveillance, and misplaced priorities. Hundreds of millions of Americans' information can now be captured by the FBI and National Security Agency simply because a person knows someone overseas--or a legal U.S. immigrant. As recently as 2015, the Department of Justice and NSA argued they didn't need a warrant to acquire the records of calls of all people in the United States based on the mere notion that some records could be relevant to foreign intelligence.
This warrantless mass surveillance of people in the United States--often capturing information on millions of innocent Americans, with disproportionate impacts on communities of color--fuels resentment against the government from both ends of the ideological spectrum. The ongoing deployment of facial recognition systems across the nation, for instance, alarms us all. The secrecy and unaccountability of the surveillance state delegitimizes the government and undermines trust.
Every administration for over two decades has undermined congressional efforts to understand surveillance practices and their legal justifications.
President Biden should take several corrective steps to take us back to constitutional surveillance practices. Recall that the FISA Court ordered the FBI to address issues that tainted the Carter Page investigation, followed by a DOJ inspector general audit that found pervasive problems affecting each of 29 sampled FISA applications. Attorney General William Barr responded with guidelines and guardrails for the Department of Justice for investigations of political campaigns and candidates.
- The Biden administration should build on these guidelines, ensuring that investigations targeting someone in the United States benefit from these expanded rules. President Biden should urge Congress to enshrine them in law as well.
Every administration for over two decades has undermined congressional efforts to understand surveillance practices and their legal justifications. In July 2020, Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt., wrote a letter to Barr and then-Director of National Intelligence John Ratcliffe demanding to know to what extent the executive branch believes it has the inherent authority to spy on people in the United States. They received no response.
Previous administrations have misled the public and Congress about the extent of spying on Americans without congressional authorization or a court order. Now, a bipartisan cross section of lawmakers on Capitol Hill led by Reps. Pramila Jayapal, D-Wash., and Warren Davidson, R-Ohio, is demanding answers. Yet we now have reports (and one agency has confirmed) that the government is circumventing the courts and Congress and purchasing countless pieces of information about Americans from data brokers.
As former members of Congress, we followed up with a
Freedom of Information Act request to push this fact-finding mission forward. Is the government hiding dragnet surveillance of Americans? Is such surveillance occurring without congressional or court authorization? Like Sens. Lee and Leahy, Reps. Jayapal and Davidson, and their many allies on the Hill, we have received no response. Demand Progress Education Fund and the Project for Privacy and Surveillance Accountability have just filed suit to compel disclosure.
- The Biden administration should commit only to spying on people in the United States pursuant to congressional and court authorization and support a congressional vote on the issue.
One year ago this week, Congress allowed Section 215 of the Patriot Act to expire. Section 215 is known as the "business records" provision and granted the government warrantless access under the banner of national security to our personal information held by businesses.
On the eve of Section 215's expiration, Sen. Richard Burr, then chairman of the Senate Intelligence Committee, took to the chamber floor to say that the executive branch has the inherent authority to surveil American citizens under an executive order known as 12333: "The president under 12333 authority can do all of this, without Congress's permission, with no guardrails." This lawless theory of executive power belongs in the distant past. Has it returned, assuming it was ever really abandoned in the first place?
- The president should endorse legislation that makes clear congressional or court authorization are the exclusive means for acquiring information about people in the United States. A good step would be to endorse Sen. Ron Wyden's upcoming The Fourth Amendment Is Not For Sale Act, which forbids buying our information from data brokers and would finally halt the shell game that some in government play with domestic surveillance authorities.
While threatening to veto FISA reauthorization legislation in May 2020, then-President Trump said that "warrantless surveillance of Americans is wrong." Taking the steps we've outlined would cement Joe Biden as the people's civil liberties ally that Donald Trump never became. The new administration has the opportunity to become that ally by providing honest answers about, and taking action on, the legitimate surveillance concerns that have dogged the American people since at least the start of this century.
