The Most Interesting Bipartisanship of the Year

The discourse over the “deep state” for the last few months has primarily involved accusations of domestic intelligence agencies supposedly working with Twitter and other social media platforms to censor certain forms of speech. More recently, whether Donald Trump should have returned classified documents from Mar-a-Lago has been the main discussion around these issues.

But in terms of the civil liberties of ordinary people over the last two decades, there is a much deeper and more threatening state: the agencies that have capitalized on an array of post-9/11 domestic spying policies, from the Patriot Act to the updates to the Foreign Intelligence Surveillance Act (FISA).

There’s been a familiar dance around these policies, elements of which typically have sunset provisions. A revelation, either from Edward Snowden or national-security reporting, shows that domestic surveillance is much more widespread and untargeted than initially believed. The national-security blob and whatever administration is in office tries to minimize the damage through selective leaks.

Then there’s a defining moment, as one provision or another faces expiration. The White House and the national-security establishment put enormous pressure on Congress, claiming that failure to reauthorize the provision would extinguish critical tools to protect Americans and put lives at risk. While there is some bipartisan dissent, it’s ultimately not enough, and the provisions are rubber-stamped once again. A few months or years later, revelations about more untargeted spying come out.

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We’ve been through these cycles since the George W. Bush administration. We’re now at the “defining moment” stage as it relates to Section 702 of FISA. This allows the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) to conduct warrantless surveillance of emails, text messages, and phone calls of foreign suspects overseas, even if they are talking to Americans, and therefore even if American communications are swept up in the dragnet. Section 702 expires at the end of the year.

Now, one should be skeptical about the possibility of actual limits being placed on domestic spying. We’ve just seen too many examples of this play out. But if the vote were to be held today, the administration and the national-security apparatus would lose. Revelations over the past week show why.

In a bid to get Section 702 reauthorized, the Biden administration declassified information regarding prior uses of surveillance powers, which it says have foiled traffickers from smuggling fentanyl into the country, stopped ransomware hackers from holding businesses hostage, and prevented the Chinese government from persecuting dissidents.

National-security officials strained to put the release in the most positive light. But what isn’t disputed is that Section 702 communications go into a searchable database and can be accessed by several intelligence agencies. There are supposed to be minimization procedures to limit database queries to cases related to foreign intelligence or to reveal evidence of a crime. But a recently unsealed document from the Foreign Intelligence Surveillance Court found that the FBI violated these procedures more than 278,000 times between 2020 and early 2021. This included queries about 19,000 donors of an unnamed congressional campaign, drug and gang investigations, various defense contractors, the Capitol Riot, “police officer candidates,” two “Middle Eastern” men who were loading cleaning supplies into a vehicle, people arrested while protesting the murder of George Floyd, and even relatives of the FBI official who entered names into the search.

This level of surveillance is widespread enough to anger pretty much everyone in Congress.

The FBI claims that “accountability procedures” have reduced searches on U.S. individuals by 94 percent, and doing the math, that still leaves around 11,000 illegal queries per year, or hundreds of new queries per day. And the previous 278,000 searches only led to a single FBI agent being fired; whether the new accountability measures will perform any better is open to question.

Separately, the Office of the Director of National Intelligence released a report showing that U.S. spy agencies habitually buy Americans’ commercially available information, which has grown more sophisticated and intrusive over the years. This includes geolocation data that can effectively track U.S. persons. In addition, the report admitted that intelligence officials can de-anonymize this information and attach individual identities to it. No warrant is currently required for this information; you just purchase it and go.

While this is more due to unregulated data broker markets than anything, critics immediately pointed out how it shows that the government has no problem getting around Fourth Amendment protections against unreasonable searches and seizures.

This level of surveillance is widespread enough to anger pretty much everyone in Congress. And everyone in Congress is angry, or at least they appear to be. Section 702 authorization goes through the House and Senate Intelligence and Judiciary Committees. You might expect the Intelligence Committees to be on board; but Judiciary has significant, bipartisan reservations.

On the House side, Judiciary Committee chair Rep. Jim Jordan (R-OH) doesn’t want to reauthorize the provision. The Senate Judiciary Committee held hearings this week, and its chair, Sen. Dick Durbin (D-IL), said he “will only support the reauthorization of Section 702 if there are significant, significant reforms.” Republican ranking member Sen. Lindsey Graham (R-SC) and other committee members of both parties also rejected a blanket reauthorization, though Graham seemed amenable to the usual position of reauthorization with unidentified “safeguards.”

Outside groups feel like this is a moment for action as well. “There’s simply unprecedented alignment in favor of comprehensive privacy protections for people in the United States, and unprecedented opposition to warrantless surveillance,” said Sean Vitka, senior policy counsel with Demand Progress, one of the leading groups calling for reform.

New polling from the Associated Press released last week found widespread opposition to warrantless surveillance of phone calls and emails among both Democrats and Republicans. This transpartisan agreement can be seen in a statement from Congressional Progressive Caucus chair Rep. Pramila Jayapal (D-WA) and House Freedom Caucus member Rep. Warren Davidson (R-OH), urging Congress to “overhaul privacy protections for Americans so that they truly protect the civil rights, civil liberties, and privacy rights that are foundational to our democracy.”

The biggest ask appears to be that officials seek a warrant before engaging in searches on American citizens. The intelligence community, predictably, says that will take too long; we’ve all heard the somewhat mythical “ticking clock” scenarios. “We must not forget the lessons of 9/11,” said one Biden official at the hearing.

The real question here is whether Congress will ignore the mountain of evidence of past abuses of warrantless surveillance in the face of scaremongering, or actually manage to reject those tactics. As a coalition letter released this week states, the Section 702 database has become “a domestic spying tool.”

For all the talk of bipartisanship in Washington, actual opportunities to achieve it are rare, especially ones that aren’t in reality a bargain between conservative Democrats and conservative Republicans in service to industry or something similar. Surveillance reform is a genuine bipartisan possibility, as both parties have growing factions opposed to warrantless spying. Republicans and Democrats are fed up with the cycle of abuse, reauthorization, and more abuse.

“Fighting mass warrantless surveillance is always hard,” Vitka said. “But this year is the biggest opportunity we’ve had in nearly 50 years, and certainly the biggest opportunity since the internet connected and exposed us.”

The pressure to give the abuses a pass will get intense as the deadline nears. We’re in Act Two of a familiar three-act play. The ending is usually a disappointment to reformers. But there’s definitely a path to a rewrite.