The Biden Administration Is Facilitating a Rogue President’s Ability to Spy on Opponents
The Biden Administration Is Facilitating a Rogue President’s Ability to Spy on Opponents
It has killed popular bipartisan reforms that would have curbed executive abuse of surveillance powers
Dear Readers:
People often don’t realize the immense power of an American president. They know about nuclear weapons and the “finger on the trigger”—which of course is something to be concerned about—but the type of power typically used and abused by the presidency is much more subtle, yet also quite destructive.
Surveillance is one of those powers. And surveillance is capable of subtly eroding many of the benefits of a free society—and even making that society not meaningfully “free.” At the extremes, you can imagine a type of Black Mirror episode, which countries like China try to enact to control their populace.
But more subtle forms of surveillance in a free society can slowly erode freedoms like termites slowly eating a house. Have you ever wanted to Google something like “What’s in a time bomb?”—out of curiosity, not intent—and then thought twice about it because you might be put on a government list? That’s one of the primary ways that surveillance curtails our freedom: it makes us scared, often in the name of protecting us.
In this deeply illuminating and disturbing essay as part of The UnPopulist’s "Fireproofing the Presidency” series, Elizabeth Goitein of the Brennan Center—a think tank that stands for the values of democracy, equal justice, and the rule of law—discusses the federal government’s vast powers of surveillance that neither party seems interested in curtailing. The Biden administration has gone out of its way to kill surveillance reforms intended to protect civil liberties that have broad bipartisan consensus. In doing so, the administration is not only paving the way for the violation of the liberties of Americans for allegedly good ends but handing a future rogue president dangerous powers for all kinds of nefarious purposes.
A must-read essay.
Trevor Burrus,
Series Editor
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.”
The surveillance abuses of 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.
The “data-broker loophole,” as it is sometimes called, is a prime example of the law failing to keep up with technology. Since 1967, the 4th Amendment has been understood to apply whenever the government intrudes on a reasonable expectation of privacy. For decades, however, the protections that flowed from this analysis were artificially constrained by the “third-party doctrine,” which holds that a person loses any expectation of privacy in information that he or she voluntarily discloses to another—no matter how limited or necessary the disclosure.
Whatever merit the third-party doctrine might have had in the 1970s, when it was first articulated by the Supreme Court, it is wholly untenable today. Documents once locked in a file cabinet at home are now frequently backed up to the cloud and accessible to the cloud service provider. Letters once sealed against inspection by the U.S. Post Office have become texts or emails, sent and stored by the companies that provide those services. Searches through card catalogues in the local library have turned into internet searches, generating search and web browsing records stored by internet service providers. In short, it is effectively impossible to go 24 hours without disclosing highly sensitive information to the multitude of third parties that manage life in the digital world.
To its credit, Congress was quicker than the Supreme Court to acknowledge the third-party data problem. In 1986, it passed the Electronic Communications Privacy Act (ECPA) to expand and update federal wiretapping laws to reflect new technologies and modes of communication. As part of ECPA, Congress enacted the Stored Communications Act (SCA), which addresses the privacy of communications-related information held by third parties. Congress also passed several other sector-specific laws in the 1970s, 1980s, and 1990s to safeguard the privacy of financial, health, and education information.
As for the Supreme Court, it finally began the long process of bringing the 4th Amendment in line with modern data practices in the 2018 case Carpenter v. United States. Carpenter held that police officers need a warrant to compel cell phone companies to turn over cell phone location information, despite the fact that customers “share” this information with the companies. The Court reasoned that comprehensive geolocation information can reveal the most intimate details of a person’s associations and activities—what the Court referred to as “the privacies of life.” Furthermore, disclosure of one’s location though the use of a cell phone cannot fairly be described as “voluntary,” given that the only alternative is to forego cell phone use and, along with it, participation in modern life.
Despite these efforts by Congress and the Supreme Court to protect the privacy of Americans’ data, the government continues to find loopholes it can exploit. For instance, while ECPA prohibits phone and internet companies from voluntarily disclosing location information and other sensitive customer data to government agencies, the law does not apply to digital data brokers—not because Congress chose to exclude them, but because they scarcely existed in 1986, when ECPA was passed. Companies that are barred from selling data to the government can instead sell it to data brokers, and those brokers can sell it to the government. Nothing on the face of the law prevents this type of data laundering, even though it clearly undermines Congress’s intent.
The government has similarly found a way around the Supreme Court’s ruling in Carpenter. Agency attorneys have interpreted the case to apply only when the government compels companies to disclose cell phone location information—not when it merely incentivizes disclosure by writing a check. Thus, beginning in 2020, reports emerged that federal agencies were buying up access to entire databases of Americans’ cell phone location information without any legal process whatsoever, let alone a warrant.
The agencies reportedly buying such data include the FBI, Drug Enforcement Administration, Internal Revenue Service, Department of Homeland Security (including Immigration and Customs Enforcement and Customs and Border Protection), Secret Service, and Department of Defense. Although the government will not reveal how it is using the information it purchases, data brokers have marketed their ability to provide lists of cell phones that have been present at reproductive health care facilities, as well as information about people present at racial justice protests (which police departments have purchased).
Members of Congress responded by introducing a bipartisan reform bill titled “The Fourth Amendment Is Not For Sale Act.” The bill would prohibit law enforcement and intelligence agencies from purchasing communications content, other communications-related information protected by ECPA, and geolocation information. Agencies would still be able to obtain such information using warrants, court orders, or subpoenas, as provided by law, but they would no longer be able to buy their way around these protections.
Like the warrant requirement for backdoor searches, the Fourth Amendment Is Not For Sale Act is extremely popular. The House Judiciary Committee, usually sharply divided along partisan lines, passed it unanimously, and 80% of polled Americans expressed support for it. Lawmakers sought to offer the bill as an amendment to the legislation reauthorizing Section 702.
The Biden administration strongly opposed the bill, but officials knew that they could not defeat the amendment. So they worked through allies in Congress to kill the legislation by separating it from the Section 702 reauthorization process. On this occasion, House Speaker Mike Johnson chose to carry the White House’s water: he refused to allow members to offer the “Fourth Amendment Is Not For Sale” Act as an amendment to the legislation reauthorizing Section 702, instead scheduling a separate vote on the bill for the same week. The bill easily passed the House, as predicted—and, also as predicted, Majority Leader Chuck Schumer is now carrying the water handed to him by Speaker Johnson by not holding a Senate vote on the measure.
Why is the Biden administration seeking, thus far successfully, to block this reform? Just as with backdoor searches of Section 702 data, the administration can obtain detailed geolocation information and other sensitive data much more easily and in far greater amounts if it dispenses with the external check of judicial approval. Administration officials will rely instead on an internal policy framework recently issued by the Director of National Intelligence to ensure the protection of civil liberties. In short, the administration believes it can be trusted to police itself. As for whether a future administration—which could easily revoke or revise the policy framework—can similarly be trusted, administration officials are conspicuously silent.
Time to Rein In the Surveillance State
It is beyond past time for administrations to stop trusting themselves—and for Congress to stop trusting them—with powers that no government should have in a democracy. The 4th Amendment stands for the principle that the government should not have access to Americans’ private information without a warrant based on a showing of probable cause. The Framers understood that this protection for civil liberties was also a vital protection for democracy. Freedom from unwarranted government intrusion enables the freedoms of belief, association, and communication that are required for democratic participation.
One can argue over whether this country has reached the point where it may fairly be termed a “surveillance state.” But there can be no question that the government has exponentially greater access to Americans’ sensitive information than it had during the darkest years of the J. Edgar Hoover era. Unless robust legal limits are restored, that access to information will only continue to grow. That’s a gift to a president seeking to punish political opponents, undermine our democracy, or exploit his position for personal gain. Are we willing to accept that risk?
© The UnPopulist, 2024
 | A guest post by
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In 2020 I retired from NSA, where I worked with FISA data. I can state categorically that we were forbidden to monitor US citizens anywhere in the world. Every search we made was audited and one of the things auditors were to look for was reverse targeting of Americans by targeting those with whom they communicated. I would love to know the name of even one American who has been targeted without a warrant.
Presidential powers blew wide open after 9/11 with the creation of Homeland Security. It would be nice if Biden could or would dial back some of these “powers” but once ensconced, damn difficult to either give up or root out. This is exactly why Felon 34/45 is such a threat. Project 2025 is geared to use such powers. And should they fail to gain power this election, they will redouble their efforts for 2029. Count on it.