Bipartisan agreement on the Hill is all too rare. But over the past week, unlikely allies on both sides of the aisle came together to oppose the appointment of Bill Pulte to lead our nation’s intelligence community as acting Director of National Intelligence and refused to vote for an extension of Section 702 of the Foreign Intelligence Surveillance Act, a controversial law which essentially allows the government to gather Americans’ private calls, texts and emails without a warrant.
The pushback was so intense that President Donald Trump announced a new nominee, U.S. attorney for the Southern District of New York Jay Clayton, who has publicly supported several recent controversial Trump statements and initiatives, to permanently lead the office. Notably, Trump moved up Pulte’s installation as well. He will still serve as acting DNI until a permanent leader is confirmed. While Pulte is a uniquely unqualified and dangerous pick, nominating a replacement doesn’t change the fact that extending FISA in its current form, amid the rapidly expanding use of domestic surveillance, threatens all of us.
While Pulte is a uniquely unqualified and dangerous pick, nominating a replacement doesn’t change the fact that extending FISA in its current form threatens all of us.
Pulte is a symptom — not the cause — of an already gargantuan and dangerously broken surveillance system. Regardless of who is leading the Office of the Director of National Intelligence, lawmakers who care about protecting Americans’ constitutional rights and security should continue to reject any extension of FISA that does not meaningfully protect our data from government misuse.
The debate around FISA is about protecting Americans’ private data from warrantless surveillance. Normally, the government needs to obtain a warrant if it wants to access our private information. But under the current law, the government can “incidentally” collect communications through something called the backdoor search loophole. Plus, they can circumvent a warrant by purchasing our personal data from a third-party data broker, putting everything from our app and browsing data to our location history at risk in what’s called the data broker loophole. That’s essentially the same as police officers handing your landlord an envelope of cash to enter your home.
Administrations from both parties have abused the backdoor search loophole, targeting Black Lives Matter protestors, political donors, and even members of Congress. When abusing the data broker loophole, the impact is likely farther reaching than we could ever imagine, given that the FBI, DHS, NSA, IRS, and numerous other agencies have admitted to purchasing data.
All of this happened before Pulte was nominated. It’s why surveillance hawks have now tried (and failed) numerous times since April to pass a reauthorization of this law, with lawmakers on both sides of the aisle calling for reform to close these dangerous loopholes. Would these problems get worse under Pulte, who is still set to serve as acting director until a new leader is confirmed? Almost certainly. But even under different leadership, these problems are bound to get worse, perhaps exponentially, without meaningful legislative reform.
This ongoing stalemate in Congress is a symptom of a broader failure to protect our Fourth Amendment right to privacy. Under this administration alone, while Congress has stood by, we have witnessed a dangerous and escalating pattern of surveillance, from the destruction of longstanding privacy protections at administrative agencies across the federal government to DHS developing a vast surveillance apparatus for warrantless mass surveillance.
This ongoing stalemate in Congress is a symptom of a broader failure to protect our Fourth Amendment right to privacy.
Yet, there are members of Congress on both sides of the aisle itching to reauthorize FISA, even if it means writing a blank check for surveillance to the administration. They are a shrinking group of lawmakers, which is why so far, a growing number of reform-minded members of Congress and a bipartisan coalition of good governance and privacy rights organizations have stopped reauthorization without reform from passing.
Don’t get me wrong, it’s great that some members of Congress have finally realized with Pulte’s nomination the grave dangers of unfettered, unconstitutional government surveillance, but feigned outrage and surrender to the administration are unacceptable. But this fight is far bigger than one individual.
As artificial intelligence makes it even easier for the government to target individuals and communities, reauthorizing FISA without meaningful reforms would give both current and future administrations a blank check for surveillance. There’s a reason surveillance hawks are fighting tooth and nail to scare lawmakers into compliance. They know that there is real momentum for change.
There is no democracy without privacy. If the government can use the websites you visit, people you love and associate with, and places you go against you, the result will be catastrophic to each of us and America as we know it. Closing the backdoor search and data broker loopholes would ensure that no one — neither Pulte nor the president or anyone acting in our name as a public official — can steal our private information and use it to target us.
Don Bell is policy counsel at The Constitution Project at the Project on Government Oversight (POGO).