PLEWSA also left the House Judiciary Committee last week with broad support from both Jordan, the Republican chairman, and Jerrold Nadler, the top Democrat.
Section 702 surveillance begins by monitoring the communications of foreign nationals believed to be outside the United States. Under these circumstances, the U.S. government can ignore most constitutional protections and wiretap virtually any individual it believes may possess—or is likely to possess in the future—information of intelligence value.
Correspondence between foreign targets and their lawyers, doctors, religious leaders, wives, husbands and children are all open for collection, a fact that would not change if every one of them were a US citizen. Whatever calls, emails or text messages are intercepted as a result of targeting a foreigner under the 702 are legal or “incidental” in the parlance of spy agencies.
Once that information is legally in the government’s possession, its use is subject to a different set of legal doctrines, many of which ignore the new circumstances under which the information was initially seized. A federal appeals court in 2021 described the “two-step” process whereby communications under 702 can be seized and only unearthed years later for an entirely different reason. The process is constitutional overall, the report said, as long as each step is “independently consistent with the Fourth Amendment.” By this logic, the FBI is permitted to treat Americans’ private communications—secretly obtained during foreign surveillance—as roughly the equivalent of information it encounters in plain sight.
How often Americans are targeted by Section 702 surveillance is a question the government says it really can’t answer. However, she decries the use of the word “target” to describe Americans whose calls and text messages are intercepted by American spies.
Sources in Congress who oppose the FRRA, the House Intelligence Committee bill, say it reflects a deference to executive power that has become common among the House and Senate intelligence agencies. Arguing that constant experience has never shown that secret services are prone to restraint, a senior aide pointed to the case of an intelligence analyst who was caught last year misusing 702 data for “online dating” purposes. It was recently confirmed, they said, that the analyst had not been fired.
“The Intelligence Committee’s ‘FISA Reform and Reauthorization Act’ may have the word ‘reform’ in its name, but the text of the bill proves otherwise,” said Rep. Zoe Lofgren. “Congress should not greenlight another major surveillance reauthorization without enacting reform measures that curb abuses and protect Americans’ civil liberties.”
The talking points obtained by WIRED and circulated this weekend by critics of the PLEWSA bill’s deeper reforms refer to the “serious damage” it causes to national security. Supporters of the FRRA bill have dubiously credited the 702 with stopping “another 9/11.” But the PLEWSA bill strikes a noticeable balance between privacy and security for a supervisory authority focused on thwarting “tier-one” threats. It contains clear caveats to help the government advance cybercrime research and increase the urgency of the most immediate, violent threats.
Sources say both PLEWSA and FRRA could get a baseline vote as early as Tuesday under the rarely prescribed Queen-of-the-Hill rules — which, in short, means the bill with the largest number of supporters could ultimately win the day.
