Don’t Fall for the Intelligence Community’s Monster of the Week Justifications

In the beloved episodic television shows of yesteryear, the antagonists were often “monsters of the week”: villains who would show up for one episode and get vanquished by the heroes just in time for them to fight the new monster in the following episode. Keeping up with the Intelligence Community and law enforcement’s justifications for invasive, secretive, and uncontrollable surveillance powers and authorities is a bit like watching  one of these shows. This week, they could say they need it to fight drugs or other cross-border contraband. Next week, they might need it to fight international polluters or revert to the tried-and-true national security justifications. The fight over the December 31, 2023 expiration of Section 702 of the Foreign Intelligence Surveillance Act is no exception to the Monster of the Week phenomenon.

Section 702 is a surveillance authority that allows the National Security Agency to collect communications from all over the world. Although the authority supposedly prohibits targeting people on U.S. soil, people in the United States communicate with people overseas all the time and routinely have their communications collected and stored under this program. This results in a huge pool of “incidentally” collected communications from Americans which the Federal Bureau of Investigation eagerly exploits by searching through without a warrant. These unconstitutional “backdoor” searches have happened millions of times and have continued despite a number of attempts by courts and Congress to rein in the illegal practice.

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TELL congress: End 702 Absent serious reforms

Now, Section 702 is set to expire at the end of December. The Biden administration and intelligence community, eager to renew their embattled and unpopular surveillance powers, is searching for whatever sufficiently important policy concern that’s in the news—no matter how disconnected from Section 702’s original purpose—might convince  lawmakers to let them keep all their invasive tools. Justifying the continuation of Section 702 could take the form of vetting immigrants, stopping drug trafficking, or the original and most tried-and-true justification: national security. As the National Security Advisor Jake Sullivan wrote in July 2023, “Thanks to intelligence obtained under this authority, the United States has been able to understand and respond to threats posed by the People’s Republic of China, rally the world against Russian atrocities in Ukraine, locate and eliminate terrorists intent on causing harm to America, enable the disruption of fentanyl trafficking, mitigate the Colonial Pipeline ransomware attack, and much more.” Searching for the monster-du-jour that will scare the public into once again ceding their constitutional right to private communications is what the Intelligence Community does, and has done, for decades.

Fentanyl may be the IC’s current nemesis, but the argumentation behind it is weak. As one recent op-ed in the Hill noted, “Commonsense reforms to protect Americans’ privacy would not make the law less effective in addressing international drug trafficking or other foreign threats. To the contrary, it is the administration’s own intransigence on such reforms that has put reauthorization at risk.”

Since even before 2001, citing the need for new surveillance powers in order to secure the homeland has been a nearly foolproof way of silencing dissenters and creating hard-to-counter arguments for enhanced authorities. These surveillance programs are then so shrouded in secrecy that it becomes impossible to know how they’re being used, if they’re effective, or whether they’ve been abused.

With the pressure to renew Section 702 looming, we know the White House is feeling the pressure of our campaign to restore the privacy of our communications. No matter what bogeyman they present to us to justify its clean renewal, we have to keep the pressure up. You can use this easy tool to contact your members of Congress and tell them: absent major reforms, let 702 expire!

Take action

TELL congress: End 702 Absent serious reforms