The Biden Administration Is Facilitating a Rogue President’s Ability to Spy on Opponents

by Elizabeth Goitein

In recent years, I have written extensively about how a U.S. president with autocratic ambitions could abuse emergency powers—special legal authorities that become available to the president during a declared emergency—to undermine democracy. But one of the greatest current threats to democracy comes from a power that is available to the president every day: the ability to collect highly sensitive information about Americans without a warrant. What’s more, the Biden administration recently won a legislative battle to ensure that the next president will have robust access to warrantless surveillance powers.

Surveillance is one of the most powerful tools an authoritarian government can deploy, as it can be used to identify and punish those who oppose the government. Even if the law does not permit the government to punish political opposition directly, governments have myriad ways to penalize those who hold dissenting views—such as subjecting them to pretextual investigations or audits, denying them public positions or benefits, or uncovering embarrassing information that can be used to publicly discredit them. Indeed, the mere knowledge that the government is watching is often sufficient to chill political dissent.

Americans intuitively understand the dangers of broad spying powers wielded by other governments, such as China. We also have a vague and receding memory of a time when our own government—most infamously, J. Edgar Hoover’s FBI in the 1950s and 1960s—abused its surveillance powers to spy on racial justice activists (including Martin Luther King Jr.) and anti-war protesters. President Nixon, in particular, tasked intelligence agencies with surveilling his political enemies. Notwithstanding the protections of the First Amendment, many Americans’ lives were ruined by surveillance that revealed alleged communist sympathies. The FBI embraced the chilling effect its activities created; internal documents showed that the bureau sought to engender “paranoia” and to convince would-be activists that “there is an FBI agent behind every mailbox.”

That era prompted the enactment of multiple laws and policies limiting domestic intelligence collection. But, as the decades passed, Americans grew less concerned about the threat of their own government spying on its citizens. After 9/11, laws and policies designed to protect Americans’ civil liberties were systematically weakened or set aside as perceived impediments to the fight against terrorism. Other legal protections simply became outdated, as Congress failed to grapple with new communications technologies and the surveillance opportunities they presented. These trends have ushered in a golden age of government surveillance that would have made Hoover green with envy.

Weakened FISA and Backdoor Searches of Americans

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a notable example of this phenomenon. FISA, which governs foreign intelligence surveillance that takes place inside the United States, is one of the most important reforms Congress enacted to rein in the surveillance abuses of the Cold War. Enacted in 1978, it requires the government to show probable cause to the Foreign Intelligence Surveillance Court—a special court established by the law, often called the “FISA Court”—that the proposed target of surveillance, whether an American or a foreigner, is acting as an agent of a foreign power.

Section 702, added to FISA in 2008, created a broad exception to that rule for any case in which the target of surveillance is a non-U.S. person (i.e., neither a U.S. citizen nor a lawful permanent resident) located outside the United States. Under this section, even if the surveillance itself takes place domestically, no demonstration of probable cause or individualized court order is required if the target is a foreigner abroad. The provision has given rise to a sprawling surveillance program under which the government targets more than a quarter of a million people and collects hundreds of millions of communications each year.

Despite the requirement of a foreign target, Section 702 surveillance inevitably sweeps in large volumes of Americans’ communications because millions of Americans routinely communicate with foreigners outside the country. Almost any American can be caught up in the net. In an extensive review of Section 702, the Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, noted:

[O]rdinary Americans may be in contact with Section 702 targets for business or personal reasons even if the Americans have no connection to, or reason to suspect, any wrongdoing by their foreign contacts and even when the government has no reason to believe the target has violated any U.S. law or engaged in any wrongdoing.

The government refers to the collection of Americans’ communications under Section 702 as “incidental,” and that framing is critical. After all, if the government’s purpose were to capture these Americans’ communications, it would have to obtain a warrant or a FISA Court order. Accordingly, to prevent the government from using Section 702 as an end-run around these legal requirements, Congress required the government to “minimize” the retention and use of any Americans’ communications that are swept in, and to certify to the FISA Court on an annual basis that it is not using the law to spy on Americans.

These protections, however, have proven to be meaningless. Every agency that receives Section 702-acquired data—including the National Security Agency, the FBI, the CIA, and the National Counterterrorism Center—routinely runs searches for the express purpose of finding and reviewing Americans’ communications. The FISA Court, which is notoriously deferential to the government, has approved this practice. The FBI conducted over 200,000 of these “backdoor searches” in 2022 alone. Moreover, the bureau has engaged in what even the FISA Court acknowledged were “persistent and widespread” violations of the lax internal standards governing these searches. In recent years, disturbing abuses have emerged, including searches for the communications of members of Congress; multiple U.S. government officials, journalists, and political commentators; and tens of thousands of Americans engaged in civil unrest, including Black Lives Matter protesters.

Alarmed at these violations, lawmakers on both sides of the aisle vowed last year not to reauthorize Section 702 without significant reforms to protect Americans’ privacy. (Congress included a four-year sunset when it enacted Section 702, and since then, it has continued to include sunsets with each reauthorization.) Chief among these reforms was a requirement that the government obtain a warrant or FISA Court order before searching Section 702-acquired data for Americans’ communications. This popular proposal had passed the House on two previous occasions with broad bipartisan support, and polls showed that over 75% of Americans favor it.

The Biden administration, however, waged a fierce campaign against this reform, both in public and privately. It began quietly lobbying Hill offices against reform in the fall of 2022, well over a year before the sunset date. In early 2023, intelligence officials began speaking publicly—and constantly—about the importance of Section 702, often conflating the question of whether it should be reauthorized with the question of whether it should be reformed. On the eve of the vote, Attorney General Merrick Garland reportedly made personal calls to members of Congress urging them to vote against an amendment that would have required agencies to obtain a warrant before searching for Americans’ communications.

The administration claimed that warrantless searches for Americans’ communications helped the FBI “prevent attacks before they happen.” But the evidence for that is extremely thin. Even after reviewing all the classified examples provided by the government, the Privacy and Civil Liberties Oversight Board concluded that “there was little justification provided to the Board on the relative value of the close to 5 million [backdoor] searches conducted by the FBI from 2019 to 2022.”

The real reason the administration opposes warrant requirements is not hard to deduce: Warrant requirements are highly effective in preventing abuses, but they also make the job of law enforcement and intelligence agents much harder. Intelligence officials, unsurprisingly, see their job as collecting intelligence, and they are naturally resistant to the imposition of any barriers to collection. Moreover, since 9/11, they have grown accustomed to having ready access to Americans’ private information. Perhaps most important, leaders and high-level officials within these agencies are, in my experience, confident in their own integrity and good intentions. They see transgressions by rank-and-file agency employees as aberrations rather than an inevitable result of warrantless access—and they are seemingly unconcerned that future agency leaders and high-level officials might be less scrupulous.

Without the administration’s full-court press, the warrant requirement for Section 702 backdoor searches would have sailed through the House. Instead, it failed by the narrowest possible margin: a tie vote of 212-212.

The Loophole that Eviscerates Privacy Protections

The Section 702 reauthorization battle prompted a broader rethinking in Congress of government surveillance practices. Recognizing that the federal government has multiple avenues for surveilling Americans, reformers observed that it made little sense to shut off one source of warrantless access if agencies could simply shift to another. Attention quickly coalesced around the government’s use of commercial data brokers to evade statutory and even constitutional limitations on the collection of Americans’ personal information.

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