The Anti-Surveillance Coalition's Highest-Stakes Gamble

Edited by Sam Thielman

I HAVE NEVER WANTED TO BE MORE WRONG about a FOREVER WARS edition. 

Later this year, the NSA and FBI's legal wellspring for mass digital surveillance, Section 702, will expire if Congress does nothing for eight more weeks. Saving it is the U.S. intelligence community's highest legislative priority. Christine Abizaid, director of the National Counterterrorism Center, recently invoked the Oct. 7 Hamas massacres to urge Congress to "preserve [counterterrorism] fundamentals"—i.e., 702—"to ensure constant vigilance." Now, everyone who has been a sane voice in the fight to preserve privacy since 9/11 sees that as a unique opportunity. 

Earlier this week, an unlikely figure, Sen. Ron Wyden (D-Ore.), introduced a measure that would save Section 702. That surprised me. Both times 702 has come up for reauthorization, in 2012 and 2018, Wyden voted against it. He voted no on the bill to create Section 702 in the first place. (So, by the way, did Joe Biden.) 

Wyden has been this generation's congressional hero on privacy—that is, freedom from ever-expanding surveillance. His colleagues in this unexpected endeavor include premiere, long-standing surveillance skeptics from both parties: Sen. Mike Lee (R-Ut.), Rep. Warren Davidson (R-Oh.) and Rep. Zoe Lofgren (D-Calif.).

Their bill is supported by the entire post-9/11 anti-surveillance coalition. Everyone who's ever shown up to fight surveillance expansion is backing this, from the institutionalists in the ACLU to the militants in Demand Progress and Fight for The Future. The conservatives in Freedom Works, the leftists at the Electronic Frontier Foundation, the technocrats at the Electronic Privacy Information Center, the attorneys at the Brennan Center, Muslim Advocates and the National Association of Criminal Defense Lawyers—they're all here, like it's the Battle of Pelennor Fields in The Return of The King.

The coalition's reasoning goes like this, according to three sources within it: This moment, when expiration of 702 is the closest it's ever come, provides unique leverage to trade its continuation for major, major reform. Not just a warrant requirement for the FBI querying the NSA's massive database of international communications – that is the floor, not the ceiling. And they're setting the ceiling higher than it's ever been since 9/11. 

THEIR PROPOSAL IS EXCELLENT—not just good, not just thorough, but excellent. 

It would ban backdoor search, of course, including for information collected under Executive Order 12333 (more on what that is in a second). Warrants would be required to query the NSA trove for geolocation information, browser usage and search history; that includes data from Alexa, Siri or emerging AI tools, as well as from the data collected by your car; for acquiring emails or other "stored communications" under the Electronic Communications Privacy Act; and even (for non-emergencies) for law enforcement usage of cell-site simulators. There can be no querying of the trove for what's known as "'about' collection," information contained within communications about a different intelligence target. The obtaining of foreign intelligence information would become the "sole purpose" of 702 collection, which right now must merely be a "significant" purpose. The NSA, FBI and Justice Department would have to provide substantially more factual determinations for their assertions before the FISA Court in pursuit of a 702 order. The origins of all evidence used in criminal court that results from FISA collection would have to be disclosed. Civil actions resulting from suspected surveillance would no longer be blocked by government assertions of state secrets. "Negligent, reckless, willful or knowing violations of FISA or Executive Order 12333" would trigger "accountability procedures," which we know work. Whistleblowers would be protected from reprisal if they disclose wrongdoing to the Privacy and Civil Liberties Oversight Board. Very importantly, U.S. intelligence and law enforcement would no longer be able to purchase large data sets as an end-run around warrants or similar requirements, something Wyden has been fighting to stop for years. Also importantly, E.O. 12333 wouldn't be available as an end-run around the restrictions on 702 the bill creates. I could go on—the bill creates expansive disclosure requirements as well—but this is already a long paragraph. The bill is without question the most sweeping privacy bill since 9/11, even acknowledging that that's a low bar. It’s probably the most significant surveillance-privacy bill since the creation of FISA in 1978. 

As much as abolitionists might write in their little Nation columns that we need to simply stand back and watch Section 702 die, the critics-turned-saviors of Section 702 have a point that I cannot say is invalid, since it springs from the same critique I'm going to make in a moment. 

It's this: If Section 702 goes down, the lawyer cadre of U.S. intelligence will simply take its expansive powers and throw them into unreviewable authorities—especially the Reagan-era Executive Order 12333, over which Congress and even the FISA Court can perform zero oversight. What we don't know about 12333 surpasses what we do. But the few who know and are willing to talk say that its powers include, as I wrote in 2014, a pathway to collect and retain Americans' data without a warrant, routing around laws intended to restrict and control both. We have good reason to believe that the intelligence attorneys would route their lost 702 powers into 12333 because that would mirror what happened, as I reported in 2013, when the NSA and Justice Department saw in 2004 that their bulk domestic phone data collection program was in danger of ending. They simply shoehorned it into the PATRIOT Act's Section 215. 

"They'll put as much as they can into 12333," says Jake Laperruque of the Center for Democracy and Technology, which backs the bill. Jake pays close attention to everything surveillance-related in Congress, and I trust his judgment. "You can't make Google hand over emails, but you can tap cables and use the data-purchase loophole. We don't want to play surveillance whack-a-mole."  

So why am I worried? 

THE POST-OCT. 7 POLITICAL ENVIRONMENT HAS PUT Palestinians, their supporters and their institutions behind the counterterrorism eight ball. There's no subtlety here. The Biden administration is pushing the Justice Department and Homeland Security deeper onto college campuses at a time when the White House-aligned Anti-Defamation League is demanding investigations of Palestinian groups for material support to terrorism. Next Wednesday, according to a notice obtained by FOREVER WARS, the House Ways and Means Committee plans to hold a hearing looking at, among other things, "concerns about the potential role of U.S. charities providing material support for terrorism abroad, including Hamas." FBI Director Chris Wray is talking about Hamas-inspired terrorist attacks inside the United States. You just read Abizaid citing Oct. 7 for the retention of Section 702. Rep. Ryan Zinke (R-Wyo.) seeks to deport Palestinians and revoke their visas. 

In such an environment, U.S. intelligence and law enforcement will undoubtedly use their available tools to draw connections between protesters, students, charities, etc., and Hamas. 702 is how that will happen. We can be reasonably confident that 702 is resulting in collection on Palestinians, and analysis of that collection, as we speak. The original PRISM disclosures a decade ago showed that the NSA program's 702-derived powers are used to investigate, among other things, Palestinian finances. (See REIGN OF TERROR chapter 6 for more on that.) 

My concern is that if 702 survives, the intelligence lawyers will do what they're paid to do: find whatever loopholes and end-runs they can around the restrictions Wyden's bill places. They'll claim internally, before the FISA Court and anywhere else that the real meaning of a congressional reauthorization of 702 in the difficult year of 2023 is that even the civil-liberties coalition concedes the value of 702 and endorsed its continuation. Then they'll assure the FISA Court that they're complying with what remains of the restrictions Wyden imposed, while we learn years later from FISA Court disclosures that they misrepresented those compliance measures and, oops, over-collection and over-analysis took place without warrants. Then there will be FBI and NSA officials who just straight-out violate the restrictions. All these machinations have recurred consistently throughout the entire history of Section 702. 

People I've spoken with in the anti-surveillance coalition acknowledge that what I'm worried about is indeed possible. They have gone through this bill and attempted to make it NSA/ODNI/FBI-lawyer-proof. I salute their hard work and want them to be vindicated. They continue that none of these restrictions will apply if the current surveillance is repackaged under 12333. I acknowledge that's a genuine problem pro-expiration people like me don't have a ready answer for. And they credibly argue that they have no better leverage to make all their excellent, sweeping surveillance reforms, both to 702 and beyond, a reality. 

I am not so arrogant as to think I know better than this entire coalition. Like I said up top: I want them to be right and me to be wrong. Each of us in our varied ways is pointing to a profound problem that stretches beyond Section 702: the institutionalized, respectable culture of lawlessness passing for compliance within the surveillance apparatus. That's not going to be solved with any one bill. 

For now, it seems the White House thinks that it can get away with a straight reauthorization of Section 702. I don't think they're reading the mood of Congress correctly, but we'll see. From what I understand, around Thanksgiving, the House intelligence committee will release a straight-reup 702 bill, with a Senate intelligence counterpart also on the horizon. We'll have to see what happens to this bill when the legislative fight is fully underway. 

I WAS HONORED to sign this statement supporting my journalist colleagues in Gaza who are reporting under wartime conditions far more horrific than any I have experienced. Israel has killed 35 of them in only a month. We as a profession have done a frankly terrible job of standing by our Palestinian colleagues—after Oct. 7, yes, but for decades before. [I’m on there too, or will be soon.—Sam.]

This, to me, is the heart of the letter:

This is our job: to hold power to account. Otherwise we risk becoming accessories to genocide.

We are renewing the call for journalists to tell the full truth without fear or favor. To use precise terms that are well-defined by international human rights organizations, including “apartheid,” “ethnic cleansing” and “genocide.” To recognize that contorting our words to hide evidence of war crimes or Israel’s oppression of Palestinians is journalistic malpractice and an abdication of moral clarity.

You can add your name here if you've ever done journalism.

ESCALATION WATCH. This edition is very long, but FOREVER WARS has to acknowledge that on Wednesday U.S. warplanes fired yet again on Iranian-operated positions in eastern Syria. Clearly the Iranians did not heed the time-out the U.S. wished to impose after its strikes last week. And also yesterday, the Iran-backed Houthis shot down a U.S. Reaper over Yemen. 

The best time for a ceasefire was right after Oct. 7. But the second best time is right now. Unfortunately, as we were editing this edition, I saw from a White House transcript that Biden said today that there is "no possibility" of a ceasefire. Expect escalation as the war continues, then.