Last month, 63 Asian American organizations gathered as a coalition to protest the reauthorization of Section 702. In a recent explainer, AP writer Eric Tucker laid out the facts:
“Section 702 of the Foreign Intelligence Surveillance Act, allows the U.S. government to collect without a warrant the communications of targeted foreigners outside the United States. Law enforcement and intelligence officials see the program as vital to combating terror attacks, cyber intrusions, espionage and other foreign threats. The program, created in the aftermath of the Sept. 11, 2001 attacks, is due to expire at the end of this month unless Congress votes to reauthorize it.”
Some Republican and Democratic lawmakers, however, are hesitant to renew Section 702 in its current form, recommending other reforms and legislative proposals which would better protect civil liberties.
Sen. Mike Lee, a Utah Republican, has said that during his 13 years on the committee, he pressed multiple FBI directors about civil liberties violations associated with the surveillance program and had repeatedly been given false reassurances about the reforms being put in place. “Every darn one of them has told me the same thing: ‘Don’t worry about it, we’ve got this taken care of, we’ve got new procedures, it’s going to be different now. It’s never different. You haven’t changed.”
One bipartisan proposal from Republican Sen. Marco Rubio and Democratic Sen. Mark Warner, the two leaders of the Senate Intelligence Committee would impose a more limited requirement, mandating a court order for when the FBI wants to conduct queries on Americans to find evidence of a crime but not for when the FBI is searching the intelligence database for foreign intelligence information.
Specifically, the intelligence community cannot use Section 702 to target Americans who are protected by the Fourth Amendment specifically regarding unreasonable searches and seizures. But Section 702 does give the intelligence community the breadth to target foreign intelligence in ways that inherently and intentionally affect Americans’ communications. Congress needs to renew Section 702 every few years. It was last renewed in 2018 and is set to expire at the end of 2023.
Bill S.139 which was recently passed, “endorses nearly all warrantless searches of databases containing Americans’ communications collected under Section 702. It allows for the restarting of “about” collection, an invasive type of surveillance that the NSA ended in 2017 after being criticized by the Foreign Intelligence Surveillance Court for privacy violations. And it includes a six-year sunset, delaying Congress’ best opportunity to debate the limits of NSA surveillance.”
The Congressional failure in 2018 opens the opportunity for the 63 Asian American organizations to seek justice through the courts and allow for the development and spreading of technology that protects the privacy and security of innocent Americans. This amendment caused a great deal of harm to American Asian American people. particularly the Japanese American people. During World War II, after the attack on Pearl Harbor, the Japanese citizens fell immediately suspect as spies. There was an irrational fear of Japanese Americans who were living in the US. President Roosevelt issued Executive Order 9066 which resulted in the internment of over 120,000 U.S. residents of Japanese descent. Many were US citizens and had no contact with.
The senators and congressmen who support Section 702 believe that the bill is necessary for the government to collect information around potential threats to America . Opponents assert that it challenges the Fourth Amendment, which states that people are protected from unreasonable searches and seizures by the government. The new bill reauthorizes Section 702 for an additional four years, which according to the proponents will be well-regulated with proper checks and balances and that abuses of the bill will trigger accountability.
Although there is some support for the bill, there is a large number of organizations, including Asian American groups that are against the reauthorization of Section 702. They claim that there is little to no protection from the misuse of Section 702 and that it will cause a wide range of harmful ramifications for people of color. Instead of the reauthorization of Section 702, the coalition wants reforms such as obtaining a warrant, increasing transparency with judicial review, and having reasonable limits set in place to prevent misuse or abuse of the Fourth Amendment. During the COVID-19 pandemic, when there was a rise in Black Lives Matter protests, it was discovered that databases obtained via Section 702 were illegally accessed to identify the people who participated in Black Lives Matter and Stop Asian Hate movements that exponentially grew during the pandemic.
The 63 Asian American organizations that came together want Congress to retract the bill and instead enact reforms instead. They want the government to obtain a warrant before searching Section 702 data or other Fourth Amendment-protected information and to restrict unlimited access to American communication. In addition, they want an increase in transparency by bolstering judicial review of foreign intelligence information making sure that the court makes informed decisions on the submissions to the FISA court. They also want reasonable limits on the scope of silence regarding information of genuine intelligence value.
