Bill Kristol & Ryan Goodman: How Trump Could Weaponize Surveillance | Bulwark on Sunday
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Summary
Takeaways
- ❖Section 702 of FISA allows the intelligence community to collect foreign intelligence from non-U.S. persons abroad, but it also incidentally collects a substantial volume of American communications.
- ❖The FBI can conduct "backdoor searches" of this database for US person information without a warrant, a practice civil libertarians and a bipartisan group in Congress seek to reform.
- ❖Concerns about potential abuse are amplified by the current administration's efforts to designate domestic groups as "foreign intelligence threats" and its history of undermining internal oversight mechanisms.
- ❖A failure to impose judicial checks on these searches could lead to political weaponization of the tool, eroding public trust and jeopardizing the program's long-term viability.
Insights
1Section 702: A Powerful Surveillance Tool with Domestic Implications
Section 702 of the Foreign Intelligence Surveillance Act (FISA), enacted post-9/11, authorizes the US intelligence community to collect the content of communications (emails, texts, phone calls) of foreign nationals located outside the United States for foreign intelligence purposes. While constitutionally permissible for non-U.S. persons abroad, this collection inevitably "soaks up" communications involving Americans who are communicating with targeted foreigners or whose communications are forwarded.
Section 702 is a section of the foreign intelligence surveillance act that congress created in 2008... it's the authority is that the US intelligence community can go into the backbone of the internet and the like and collect the emails, texts and phone calls, the content of them of a foreign national who is um outside the United States... the problem is that that huge database that is collected also soaks up a lot of Americans communications...
2The "Backdoor Search" Controversy: Warrantless Access to US Person Data
The primary point of contention is the FBI's ability to "query" this vast database of collected communications for information on US persons without first obtaining a warrant based on probable cause. While internal rules exist for these queries, they are not subject to judicial oversight at the individual search level, unlike traditional FBI investigations. This lack of a warrant requirement is seen as a significant privacy and First Amendment concern by civil liberties advocates and a bipartisan coalition in Congress.
the FBI has the authority... to go in the back door... and query... the database of US person information... none of that is really regulated by the courts when they go on individual hunts for US persons information. say American citizens and uh legal permanent residents in the United States. And that's the biggest issue...
3Concerns Over Executive Abuse Under the Current Administration
The debate over Section 702's reauthorization is intensified by fears that the current administration could weaponize this surveillance authority against domestic political opponents. Evidence cited includes the administration's decimation of internal oversight bodies, its history of violating First and Fourth Amendment rights in related contexts (e.g., against protesters), and its active campaign to label "Antifa" and other left-wing groups as foreign intelligence or terrorist threats. This designation could provide the necessary pretext to use Section 702 to surveil Americans deemed "enemies."
the present administration acutely brings to the foreground uh issues of abuse... in all likelihood abuse the section 702 program to go after what they identify as left-wing groups... the administration has decimated internal checks... a penant for violating Americans first amendment rights and fourth amendment rights in related context... the administration is on a campaign to paint quote unquote Antifa as a foreign intelligence threat...
4The Risk of Compromising the Entire Program
Allowing unchecked executive abuse of Section 702 could severely damage public trust and support for the program, even among national security advocates. If a major scandal erupts from the political weaponization of this tool, it could lead to a complete loss of public confidence and potentially jeopardize the program's future, reminiscent of past surveillance abuses in the 1960s and 70s.
if it is allowed for the Trump administration to go through the use the abuse of section 702 and we have a major scandal for them doing that... I think it compromises the whole program. I don't think Americans um parse all of these details so finely and if the administration is allowed to abuse section 702 in such a grotesque way that looks back to it's like it has echoes of what happened in the 1960s and 70s in terms of abuse of surveillance authorities domestically. I think it compromises the whole program.
Lessons
- Advocate for congressional reforms to Section 702 that mandate a warrant requirement for querying US person data, even with emergency exceptions, to protect civil liberties.
- Monitor legislative developments regarding Section 702's reauthorization, particularly the bipartisan efforts in the Senate (e.g., Wyden-Lee legislation) that propose reasonable checks without undermining core foreign intelligence capabilities.
- Educate oneself and others on the implications of unchecked surveillance powers, especially how broad definitions of "foreign intelligence threats" can be used to target domestic groups and individuals.
Quotes
"The problem is that that huge database that is collected also soaks up a lot of Americans communications."
"The FBI has the authority... to go in the back door... and query... the database of US person information... none of that is really regulated by the courts when they go on individual hunts for US persons information."
"This particular administration looks like it's ripe to abuse it."
"If you can have Antifa as a foreign intelligence threat as a counter as a counterterrorism matter that's kind of opening up the turning the key that opens up section 702."
"If the administration is allowed to abuse section 702 in such a grotesque way... I think it compromises the whole program."
"Should the FBI be looking at her, um, emails, uh, phone calls, and texts without probable cause or judicial warrant? It's just that simple, I think, in terms of how awesome the power is and how threatening it is to US constitutional rights."
"Cash Patel, who has otherwise been against some of these powers in the past, why would he be so keen to have that authority?"
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