A Spying “Reform” That Makes Things Worse

Donald Trump’s whiplash-inducing Twitter comments about the surveillance legislation his administration had just endorsed didn’t stop the House of Representatives from approving a bill to reauthorize the FISA Amendments Act for another six years, but if you watched the floor debate, you might come away thinking civil libertarians won at least a few concessions in the process. Defenders of the statute’s controversial Section 702, which authorizes warrantless surveillance of foreigners’ communications, rejected a proposal to require FBI agents to seek a warrant before querying the vast 702 database for Americans’ communications—a practice critics have dubbed a “backdoor search”—but did accept a narrower warrant requirement for queries conducted for criminal investigations unrelated to national security. Is this, as the bill’s boosters repeatedly insistence, a “compromise” that should provide some small consolation to civil libertarians?

Alas, no. There’s a good reason you won’t find any privacy advocates cheering even a partial victory following Thursday’s vote.  First, as I noted back in October, such a narrow warrant requirement would do almost nothing to prevent abuses of the sort it’s most reasonable to worry about: historical abuses of spying power have nearly all been clothed in invocations of national security.  But it’s worse than that.  The limited warrant requirement in the House bill not only exempts a potpourri of ordinary crimes—among them any involving the risk of death or serious injury, cybersecurity, or offenses against minors—it applies only to what are known as “predicated” or “full” investigations.  

What this means, perversely, is that when FBI agents are conducting “preliminary” investigations—which are essentially inquiries into whether a crime worth investigating may have been committed—they are free to search for Americans’ intercepted communications.  The requirement to obtain a warrant kicks in only when there is enough evidence of wrongdoing—a “factual predicate”—to open a full-blown criminal investigation.  In other words, Americans will actually enjoy greater privacy protections when the government has evidence they’re involved in criminal activity.  That should seem inherently rather backwards, but it also sets up some pretty terrible incentives.  In effect, it tells investigators: “You’d better go hunting for people’s private communications in the preliminary stages of an inquiry, when it’s less clear who or what actually merits scrutiny, because once you’ve developed actual evidence you won’t be able to do it without jumping through additional hoops.”  This inverts the normal progression of investigations, where more intrusive methods become available as evidence of criminal conduct accumulates.

This also incentivizes the unseemly practice of “parallel construction,” wherein information obtained by intelligence methods is passed along to ordinary law enforcement agencies, which then conceal its intelligence origins, often fabricating an alternative story of how that information was discovered before bringing a case to court. As a new report from the group Human Rights Watch details, the practice appears to be disturbingly routine, despite the serious and obvious due process questions it raises. Now Congress is poised to give explicit statutory blessing to the warrantless querying of intelligence intercepts for ordinary criminal investigative purposes.  A probable unintended consequence is to make parallel construction even more attractive: agents can develop preliminary leads without being burdened by court oversight, then offload the task of building a case to bring before a judge on state and local authorities (or other federal agencies, such as the Drug Enforcement Administration).  

Finally, it’s worth noting a tension in the arguments offered by 702’s defenders that came out with unusual clarity in Thursday’s floor debate.  One representative after another insisted that civil liberties concerns about 702 were misplaced since, after all, it was focused on “targeting” only foreigners on foreign soil.  Yet again and again, the very same representatives insisted that the intelligence value of 702 would be “crippled” if the government could not routinely query the database of intercepted communications for information about Americans.  It does not take advanced training in logic to see that those claims cannot both be true.