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The Domestic-Foreign Electronic Surveillance Nexus
Cato Surveillance Week 2026, Day One — October 12, 2026
Moderator: Patrick G. Eddington, Senior Fellow, Cato Institute
Panelists: Hajar Hammado, Senior Policy Advisor, Demand Progress; Sascha Meinrath, Palmer Chair in Telecommunications, Penn State University; Alex Marthews, National Chair, Restore the Fourth
Patrick Eddington: Well, hello and welcome to Cato Surveillance Week 2026. I’m Patrick Eddington, senior fellow here at the Cato Institute. We’re going to have, multiple events this week. Today we’re gonna be focusing primarily on various forms of electronic surveillance, mainly at the national level, but I’m sure we’ll get into some of the potentially state and local stuff as well as we go along. I just wanna make sure that the folks who are, watching or listening right now know that if you want to submit questions, for our panelists, just go ahead and do that via the webpage for the event, Facebook, YouTube, or X, any one of those will work. And, I wanna take just a quick moment to provide some, brief introductions for our, particular speakers we have here today. Hajar Hammado is the senior policy advisor at Demand Progress.
Professor Sascha Meinrath is the Palmer Chair in Telecommunications at Penn State University, and Alex Marthews is the national chair of the grassroots organization Restore the Fourth. My thanks to each and every one of you for carving out time, on this Columbus Day or Indigenous Persons Day, whatever your, particular preference is. It is a, it is a holiday, so I really do appreciate you all, carving out the time. It, has literally been a quarter of a century since the so-called War on Terror, began. It spawned a series of government surveillance and technologies, government surveillance programs and technologies, and we are really only beginning to kind of, have any kind of reckoning with respect, to just exactly how those programs and activities have directly impacted the constitutional rights, of Americans, as well, as well as legal immigrants here in the United States.
And what I, what I wanna do to begin with here is to just kinda start off with, kind of a larger, overarching question. You know, traditional Article Three courts, their jurisprudence generally shows that you’ve got to have some kind of probable cause-based warrant in order to search and seize somebody’s person or their, possessions or their home or whatnot. But when it comes to the Foreign Intelligence Surveillance Act, s- specifically the recently expired, Title VII, which may come back to haunt us, after the midterm elections, in that particular case, at least under FISA, one only needs to demonstrate that there is an ostensible foreign intelligence connection essentially for the surveillance to take place under Title VII specifically.
And I guess my big opening question is, do the alleged actual threats to the United States, whether we’re talking about terrorism, whether we’re talking about, nation state actors for that matter, or anything else, do they justify this kind of a legally bifurcated, approach to surveillance, search, and seizure? And I’ll just kind of open that up for anybody who wants to jump in to begin with.
Sascha Meinrath: I mean, I can jump on this, you know, which is, you know, anyone that reads the Constitution is well aware there’s not an asterisk on the Fourth Amendment. So no, obviously it’s not justified and that’s not just the rantings of an uppity professor, right? We’ve had multiple federal court rulings stating, “No, this is an overreach. This is an overreach.” It is the case that we are sort of driving ourselves into a series of Gordian knots constitutionally, legally with our interpretation or reinterpretation of constitutional protection, where a lot of these constitutional issues haven’t yet been ruled upon, but a lot of these programs have been already found to be illegal.
And, you know, if anyone wants to bet me a pint, I will take the bet that they will be found to have been unconstitutional retroactively, and then we have the problem of having to undo this series of fruit from the poisonous tree that have been used all over the I mean, this is a real constitutional and legal mess that we are creating for ourselves instead of just doing what the Constitution says, which is, look, if you, if you have a terrorist nexus, go get a warrant. It’s not that hard, and then do it through legally justified constitutional practice.
Alex Marthews: To add to that, Sascha, you could say in a very limited way that the bifurcated approach of having warrant protections for US person data and no warrants for non-US person data, had some empirical justification in the late 1970s when FISA originally passed. Because in that context, domestic to foreign communications traffic was very rare. It cost $20 a minute to call many foreign countries. There were other foreign countries that you couldn’t call at all on the phone. And so you could argue that the volume of domestic to foreign communications would be, A, small, and B, at least somewhat more suspicious than it is today. Nowadays, technologically, you have packet switch networks where US to US person communications can easily route through a foreign nation if that happens to be the quickest route for that packet in the moment.
And so the functional effect of trying to bur- bifurcate the approach has been to remove the protections that might previously have existed for US persons and to treat all or nearly all communications traffic as being potentially foreign.
Patrick Eddington: Hajar, anything, you wanna build on in terms of what Alex and Sascha have said so far?
Hajar Hammado: I think they covered it all, but, you know, what I will say is sort of, foreign intelligence, you know, does not justify warrantless access to Americans’ communications. We need There has to be a warrant. There has to be judicial approval for US person searches. Of course, you know, there are narrow exceptions that we would be okay with in emergency situations. But other than that, we cannot, we can- it does not justify, surveillance of Americans.
Patrick Eddington: And I think that it’s, it’s worth pointing out, to our viewers and our listeners that since the Foreign Intelligence Surveillance Act was created and passed into law in 1978, it has always had emergency or what we call in the, in the legal lingo, exigent circumstance, carve-outs essentially, you know, to allow for the government to go up essentially, with warrantless surveillance for an extremely limited period of time in order to establish it. And, I think it’s also worth noting that under ti- FISA Title VII, which contains, of course, the Section 702 program, while that program was actually running, it had a very lengthy, emergency carve-out essentially for going up on surveillance before having to go back, before the Foreign, Intelligence Surveillance Court.
Our ability to actually, you know, kind of keep track of these programs, the ability not just of those of us in civil society, but, folks in Congress and elsewhere to try to keep track of these programs really depends on, having a functional oversight architecture. And I think, most of you are probably familiar with the fact that in the Supreme Court’s decision in the Slaughter case, earlier this year, that of course is the case, involving, Ms. Slaughter and her petition essentially, to be reinstated, at the particular independent federal agen-agency at which she worked. The Supreme Court essentially in that particular case, found that the president’s power to de facto hire and fire folks, that have actually been appointed to these boards, is essentially plenary.
Unless of course you work at the Federal Reserve, in which case the Supreme Court is going to make an exception, which I personally find inconsistent, in terms of the overall or overarching logic here, but that’s a separate story. It’s Slaughter that controls here for our purposes because, as I think everybody here knows, the Privacy and Civil Liberties Oversight Board, which is itself is a creation of Congress, a post 9/17, artifact essentially designed to provide so-called independent oversight, of these kinds of programs. In my view, it has never been genuinely independent. I’ve- I’m on record as saying that. And of course, here at Cato, we have, litigated against the Privacy and Civil Liberties Oversight Board in the, in the, in the context of the kinds of reports that they’ve been receiving, from various intelligence community components. I’ve, I’ve written on that.
But I will say that having, the Privacy and Civil Liberties Oversight Board has proven to be better than not having it, unfortunately, and I never thought I’d be in the position of actually having to admit that, but I will admit it now. We have, I think, only one currently serving board member left. There is no quorum. I think they put out a staff report of some kind, you know, relatively recently in the last, you know, year or so, but it’s just essentially kind of dead in the water. So my question for you all, do you believe that the PCLOB, A, was important, was useful, and then B, should it be reconstituted? And then secondly, if it proves certainly in the short to medium term to actually reconstitute the PCLOB, is this something that the, that the Government Accountability Office, Congress’s watchdog, can actually take over? And again, I’ll open that up to any and all of you.
Sascha Meinrath: I’ll jump on here. I mean, like, so the PCLOB, as it’s weirdly called, is a institution with an im- a fantastically important remit and a completely dysfunctional praxis. Which is to say, like, you know, I would agree with you, it’s better than the alternative, but it’s sort of like in the same way that I’d rather be punched in the gut rather than the face, right? Like n- this is not a great outcome that we have set up for ourselves. And clearly the lack of independence, especially because a lot of the problems from this presidential nominated group of people is the presidency itself, like that’s not gonna be an effective independent mechanism for oversight and accountability.
And thus, you have multiple members of PCLOB saying, “You know, we felt that our hands were tied,” or, “We felt that we couldn’t really dive into things,” or that we, you know, “That’s beyond what we were allowed to…” And, you know, this is not functioning as a watchdog, which was the intent, but I would argue cannot be done if you are within the intelligence community or the executive branch. So, you know, if this were an article, I’d be like, “You need to revise and resubmit.” We need the function of meaningful independent oversight. This isn’t that, however. Alex, Hajar, thoughts?
Alex Marthews: I think that, the underlying purpose of PCLOB, was to provide transparency and specialized expertise when dealing with national security budgets and programs. That specialized expertise is helpful wherever that expertise is housed. And the concern Here with PCLOB and with other independent agencies is that in that the executive is trying to cut off executive branch offen- officials from even the possibility of saying something the White House doesn’t wanna hear. The risk there is that the US government will inevitably make worse decisions in relation to privacy and civil liberties, and the balance between that and surveillance powers. How you alleviate that risk in a future post-Slaughter environment is going to be a great matter for the institutionalists and jurists to examine. But I don’t know whether I have an answer for that right now. Hajar, any thoughts?
Hajar Hammado: I don’t have anything else to add. Thank you.
Sascha Meinrath: I’ll just simply add, you know, y- you don’t need to look to us. PCLOB members themselves overwhelmingly from the privacy and legal side of its membership have consistently over many years stated publicly, “This thing lacks independence. We can’t actually get things done.” I mean, that’s a pretty damning insider’s view of the lack of effective oversight and accountability from the members themselves.
Patrick Eddington: And I think it’s also worth noting that, you know, one of the other reforms that came out of the 1970s, the Watergate and Church Committee era, and in fact was enacted the very same year that the Foreign Intelligence Surveillance Act was enacted, 1978, is the Inspector General Act, right? And of course, what we have seen, particularly, under Trump 2.0, is this proclivity to get rid of inspectors general. In most cases, individuals who’ve actually kind of come up through the government investigative ranks, if you will, within the IG community. And I certainly have grave concerns, about exactly where that’s going to take us.
The other interesting point to kind of make here is that when Congress itself, which has of course the two, intelligence committees that were also created in 1978 as a result of this large reform wave, in the post-Church Committee era, in my experience at least, in the 10-plus years I spent on the Hill, those committees ultimately have morphed into not overseers, but much more so, in my judgment at least, cheerleaders, more often than not, than overseers for the intelligence agencies that they’re responsible for overseeing.
And of course, we saw that play out, very starkly, this spring when essentially Senator Cotton, the current chairman of the Senate Intelligence Committee, was basically at war, with the senior member, in terms of time of service, of the Senate Intelligence Committee, Senator Wyden of Oregon, over this entire issue of, FISA Section 702 oversight, just exactly how many additional incidents, violations potentially of people’s rights have occurred since the 2024 legislation was enacted. And it’s, y- you know, when we have circumstances like that, what we I think have all seen is that, in the past at least, the House Judiciary Committee has tended to be the one, you know, to really kind of come to the fore, w- you know, with some, with some real punch here. This happened in late 2023, as I think folks remember.
There was a vote out of the House Judiciary Committee in favor of a major FISA reform bill, FISA Section 702 reform bill, that passed the committee 35 to two. That almost never happens. It did happen while President Biden was in office, so there was probably some political color that goes along with that. But that particular piece of legislation, had it been enacted, would have been the single biggest reform since the Church Committee era. I mean, there’s really no question about it. And I think what I’m personally worried about and what I wanna basically hear from each one of you is, as we go forward now, once we get past this particular midterm, if the composition of the House and Senate in terms of party control changes, do we actually expect to see any real change here? Any attempts? We know that there have been press reports, about trying to revive, Section 702.
I think a couple of senators have actually said something to that effect, in a post-midterm environment. So what are you all hearing, and do you think going into the 120th Congress, I guess is what it would be, what are our prospects for actually seeing any kind of actual FISA Section 702 reform?
Hajar Hammado: Yeah, I can start on this one. I guess first I’d like to t- touch a little bit on what we’ve seen in recent months, from attempts to reauthorize Section 702. It’s, this has been the first year in near- or the first time in nearly 20 years that Congress could not renew Section 702 on the government’s terms, a no reform reauthorization of these authorities. We saw leadership repeatedly try to push through reauthorization without any meaningful privacy protections, and every single time they attempted to do this, even at, you know, late night hours, there was a bipartisan resistance stopping them each time, both from civil society, from Americans around the country, from members of Congress themselves who want to see debate on reforms and want to see votes on these reforms.
And so, you know, the ask continues to be very simple: require warrants, for searches of Americans’ communications and close the data brokerage hole. So in April, Speaker Johnson had negotiated a five, year extension with limited warrant process changes, and we saw a bipartisan at- effort, including, 20 House Republicans that voted against this rule. They tried again- In June, and after each attempt, they eventually gave up and went on recess. And we are in the position that we are now where Section 702 authorities have not been reauthorized by Congress, despite fear-mongering that there would be a national security, incident if we did not get the authorities, you know, if they were not, if it was not re- if there was no clean reauthorization ahead of their so-called deadline.
We are currently in a period of where the FISA court, recertification of Section 702 is still, is still active until March 2027. So there is n- there is time, I believe about five months for Congress to really, engage in real debate to, negotiate these, on these reforms and to allow members of Congress to vote. And the reason we haven’t been seeing votes on these reforms thus far is that there is, you know, a majority of Congress that would, currently, vote in favor of reforming Section 702 authorities. So it’s, it’s hard to tell what’ll happen in the next Congress, but, we have heard sort of rumblings that there might be efforts to reauthorize Section 702 after the midterms, so during lame duck period, and that could include trying to shove it into, a must-pass bill, so if it’s the NDAA or something else that gets brought up after the election. But that, we don’t see that as appropriate.
This FISA 702 needs to have its own vote, its own debate, its own floor time. It, is a very complex issue that requires, Congress to weigh each reform and to allow Congre- members to vote, to vote on these reforms. So, that’s sort of what we’re expecting and what we’re seeing and we’re hopeful that we’ll, we’ll be able to see some debate ahead of the March 2027 deadline or the, re- FIS- recerti- certification expiration. So I’ll stop there and see if anyone else wants to weigh in as well.
Sascha Meinrath: I think it’s really important also to put this into the historic context of the battles over these illegal surveillance programs. I remember, Pat, working with you, on Section 215, and the playbook was the same, and the consequences for non-renewal, we were told, were the same. To fail to have this whole other legal umbrella for illegal surveillance, if we cease to have that be the law of the land, the terrorists would win. Well, that’s sunset, and lo and behold, nothing happened. It’s also important to remember, like, Section 702 is less than two decades old. It’s not like the terrorists won before 2008. So again, you have this kind of hyperbolic rationale for why would this program must exist and that we can’t have safeguards and that you must accept all the badness because otherwise terrible things would happen.
And I think there’s a reason I’ve long been pushing that we actually track the efficacy of these programs, which is to say, without public disclosure of what the trade-off is, i.e., how effective these programs actually are, it’s really hard to justify giving up rights for this magical, supposedly essential service that has never been publicly proven. And all of that is before you get into the constitutionality that we started with, which is to say, again, the Fourth Amendment doesn’t have an asterisk saying, “Well, you don’t need a warrant if you’re going after these forms of bad guys.” And so we keep returning back to there as well.
Alex Marthews: I think we should talk about Taylor Swift if we’re going to talk about effectiveness. And I say that because in the current round of the Section 702 debate, the CIA’s fact sheet that they distributed to Congress regarding the effectiveness of Section 702 surveillance had as one of its key central eye-catching anecdotes, and this was the one that the press picked up most on, that Section 702-derived intelligence enabled the intelligence services to prevent an attack on a concert of Taylor Swift’s in Austria. Now, I want to emphasize that up front that neither I nor Restore the Fourth nor the civil liberties community in general actually wants Taylor Swift to die. The, or at least not all of us. The, but I want to highlight this as a rhetorical strategy because when you know about the programs involved, it doesn’t necessarily make any sense.
The concern that civil liberties folks like us have about Section 702 surveillance is that it is primarily that it enables suspicionless, warrantless surveillance of U.S. persons’ communications. There’s a whole other discussion that we can have about the surveillance authorities that the U.S. deploys in relation to foreign-to-foreign surveillance, but this policy debate is not that. And there is nothing public that suggests that there was any relevant communication from or to any person in the United States relating to the plot to attack, a Taylor Swift concert in Austria. There may have been, but there may not have been at all. They said there was, that there was, that Section 702 had some part to play, and they’re not disclosing what the part was. The other element is, let’s say that there was some US to foreign communication involved somewhere in the mix.
Let’s say even that it was helpful. How do we know as members of the public that it was absolutely necessary to not get a warrant in that context? Why, if you reasonably suspected that an actual terrorist attack was being planned against a Taylor Swift concert, would you not be able to go to a judge and get a warrant to intercept those communications? It seems implausible that you wouldn’t be able to. So they deploy these arguments and people go, “Oh, well, we don’t want Taylor Swift to die. We better, you know, not vote for any reforms here.” But when you dig into it, does it really make any sense at all?
Patrick Eddington: When we go back and kind of look at some of the history here, and I know Alex, you, alluded to some of that earlier, and Sascha has been alluding, to some of it as well. One of my most powerful memories, from the previous decade was when, Senator Patrick Leahy, former, now former Senator Patrick Leahy of Vermont, was the chairman, of the Senate Judiciary Committee, and he had hauled before him, Chris Inglis, who at the time was the number two, guy at NSA. And the issue was, the Section 215 telephone metadata program, and I believe it was, it was probably– this was actually before the whole call detail record, change, in the statute.
But, Leahy had hauled Inglis up there because NSA had been putting out talking points and, press releases and all manner of things basically saying that the 215 program had been responsible for breaking up over 50 terrorist plots, the implication being 50 terrorist plots against the United States. And in the space of less than five minutes of questioning, Senator Leahy got Inglis to admit that, in fact, 215 had been responsible for zero terrorist attack plot defeats, in that particular time, and that, in fact, there was just some data about a potential money transfer, I belie- if I recall correctly, involving somebody, in Somalia, and that was a Somalia-centric, you know, kind of situation.
So, you know, as a former intelligence officer and somebody who, constantly daily studies, you know, law enforcement techniques as well, when we start talking about the use of intelligence sources and methods, the reality is, unless you have very precise data on somebody, the notion that mass surveillance is going to stop an attack, I think, is literally a chimera. Now, the other argument, that our friends at the FBI and NSA and elsewhere make, and of course, White House officials have been making this, you know, particular, argument, Senator Cotton I know has made it, is that in the president’s daily brief, which is supposed to be the super secret, particular briefing that the president gets, daily on allegedly highly perishable sources, that the 702 program, and let’s remember that 702 is collecting essentially commercial data.
It is, it is collecting phone calls, it is collecting text messages, it is collecting these kinds of things. The vast majority of which, I think Sascha will probably confirm for me, are not encrypted. The vast majority are simply not encrypted. So if, and I’ve seen these estimates are like 50 to 75% Or maybe even more of the president’s daily brief contains 702-derived information, on fentanyl trafficking and, you know, a wide range of things. My initial reaction is, where are the real secrets? Right? Because the most sensitive communications, especially of state-level actors, a Russia, a China, a North Korea or Iran, are simply not going to be transmitted over commercial telephone lines, if they really actually want to protect them.
So I think, you know, the folks that are, that are working at NSA, FBI, CIA and elsewhere, in addition to folks on the Hill that are making these arguments that this program is absolutely vital, they never have actually produced a public laundry list of on this date, these individuals were basically taken out by drone strike, because we had confirmation through 702 that they were about to commit an act of terrorism against an American embassy, or American troops or whatever, you know, deployed overseas. We simply haven’t seen that, and I would personally think that if you had the goods, so to speak, and you really wanted to sell this with the public and cause people like the four of us to shut up, you’d be putting that stuff out there.
And so that’s why I continue to have concerns that this particular program, the 702 program, will We may in the end find out that it was much like the se- the, Section 215 program as well. We also, I think, it would be beneficial to kind of remind folks that this FISA Section 702 program, which was, originally enacted in July of 2008, is essentially the descendant of George, W. Bush’s so-called President Surveillance Program I think folks should kind of let it sink in about how creepy that particular characterization itself sounds. But the actual codename of that program was Stellar Wind, and it was started literally within hours of the 9/11 attacks. And it totally bypassed the FISA court, and we had no idea this was even going on, those of us out here in the public.
We had no idea it was going on until Jim Risen and Eric Lichtblau, when they were both at the New York Times, you know, disclosed this program in December of 2005. And that’s how we got a two-and-a-half-year fight in Congress over trying to take this mass clearly unconstitutional electronic surveillance program and somehow make it, you know, facially constitutional. We would be unfair if we did not point out, that the FISA court itself has repeatedly said that the 702 program does pass Fourth Amendment muster. We now have, a case before the Second Circuit, Hasbajrami, US v. Hasbajrami, in which, there are now questions. At least one federal district judge has ruled essentially that any kind of search of the FISA Section 702 database requires a warrant. That is on That’s still on appeal. The government has appealed that.
And arguments, oral arguments were heard, I believe, back at the end of April, just about when the whole FISA 702 thing was blowing up in Congress. We don’t have that final decision from the Second Circuit at this point. If it were to come down, before Congress acted on any kind of renewal, I think that would make things very interesting. But that’s kind of the state of play on that right now. I want to kind of keep us moving here to get through as much of this as we, possi
Sascha Meinrath: Inspector General of the United States issuing a report in 2019 around this phenomenon called parallel construction whereby law enforcement lies to a judge. They call it parallel construction. If you and I did it would be just perjury. And basically makes up a story as to where they got information that came from one of these programs. And anyone that’s studied anything around, like, law and the Constitution knows that if you have illegally garnered evidence, you cannot use that in prosecuting bad guys, which then opens up, again, this whole Pandora’s box. So as these various programs and various facets of the programs are found to be illegal, and yet people have been convicted, and neither them nor the judge nor necessarily the prosecutor know that, in fact, they’ve been convicted with this illegally garnered evidence, well, how do you, how do you fix that problem?
Which again, I mean, so now you’re talking about a Fourth Amendment, a Fifth Amendment, a Fourteenth Amendment. Like, we’re, we’re checking off boxes on unconstitutionality across a variety of amendments at this point in time, and that is a near future certainty given the nature of a lot of these programs.
Patrick Eddington: It’s interesting that you bring up parallel construction because it’s actually a technique that was utilized throughout World War II in order to conceal the success of British intelligence essentially breaking, Nazi Germany’s Enigma code. Of course, that particular cipher was used, to communicate with, the U‑boats that were at sea basically trying to starve Britain to submission and, responsible for protecting German military communications during offensives, all these things. And so, during the campaign in North Africa against, Field Marshal Rommel and the Afrika Korps, oftentimes, the Brits would be able to get a heads-up on when an Italian resupply convoy was gonna be sailing to Tripoli, in North Africa to resupply Rommel and the German forces there.
And to protect the fact that they had successfully broken Enigma, they would make sure that, you know, some kind of RAF or Royal Naval aircraft overflew that Italian convoy, so that then they would the Italians would think they were discovered by Ara- you know, by the RAF or Royal Naval Air Force. And the convoys would then, of course, be attacked, and a lot of the supplies wind up being sunk. Anyway, it was the decisive edge for the British in the entire North African campaign. I believe it directly contributed to a lot materially contributed to Rommel’s ultimately defeat, ultimate defeat. So that particular military tactic, right, in essence, has been imported over into law enforcement. And that, I think ultimately that’s kind of the point that you’re making here, Sascha.
When we get into the whole issue of parallel construction, I would be remiss personally if I did not talk about, the Rosenberg case because the Rosenberg nuclear spy ring case in the 1950s, because it was Army and Navy, signals intelligence successes that allowed the belated translation, of these Soviet messages essentially that revealed, that, Julius and Ethel Rosenberg were almost certainly part of this ring. What the government did not want to do, however, is have to go into federal court and admit that essentially post facto, they had decoded this stuff. And, so they wound up, you know, utilizing a different technique. They got somebody else essentially to roll over on the Rosenbergs. They interrogated somebody else. They didn’t want to give up the secret on Venona. That was the code name of the particular Soviet cipher that they’d managed to break.
So our friends, you know, in law enforcement and intelligence community, I’m pretty confident would make the argument that there are perhaps some cases where the use of parallel construction can potentially be justified. This is an issue, and I totally agree with you on this is an issue that, federal courts, and I think the Congress especially, really need to kind of take a hard look at because if we have circumstances in which parallel construction is used, and particularly the prosecution essentially fails its Brady responsibilities with regards to exculpatory data, that would, that would benefit the defense, then I think you really begin to get into some really nasty kind of areas legally.
To kind of keep the ball moving here, and I do wanna try to get to some other, issues here besides, you know, actual, particular programs, but just to kind of tie this up, on 702 for now, if there’s one thing that Congress could do, the new Congress, 120th Congress could do on 702, what would that be? Let me, let me hear from each of you.
Sascha Meinrath: I mean, I’ll jump in here. It’s, so sunset would be my one, but assuming that we’re taking sunset off the table, which is to say-
Patrick Eddington: Well, let’s, let’s, let’s not. Let’s not take it off the table.
Sascha Meinrath: Great. Well then, you know, sunset. Basically, you need an entirely different structure, one that is rights and Constitution protecting first and foremost, and that enables necessary surveillance under that. There is no way to protect America by undermining our Constitution. That’s just, that’s not, that’s not a starting point. At that point, you create something else. And so, you know, as somebody that believes very strongly that what makes us great are the freedoms and liberties under American democracy, this pursuit of protecting that by undermining it seems just really damn cynical. So I would say sunset would be the number one thing, and after that, reconstitute something via public discourse, via transparent, clear set boundaries of utilization.
And then we could have an honest debate over what the trade-offs, the costs, benefit analyses, if you will, are, and what we, the general public of the United States, are willing to put up with. Right now, this is all done in the dark recesses of, you know, back rooms in ways, and parallel construction, what have you. They’re all used, in essence, to protect us, the United States, from the embarrassment of the myriad ways in which we are not abiding by our own rule of law.
Alex Marthews: So I very much appreciate the Jeffersonian perspective that you’re bringing here, that government is constituted with the end of protecting people’s rights, and if it no longer is doing so, then we can get another government. The, in the context of renewal of the FISA statute, I would love to see a sunset, great, obviously the principal demands of reformers are a very necessary two r- demands that need to go together. First, that there would be a warrant by default for government agent queries of the 702 database. It contains millions of communications and possibly the communications of millions of Americans. It should not exist as such a large loophole for our Fourth Amendment protections in our communications. And a- speaking as somebody who has been known to communicate with people outside the United States, I feel personally implicated by that.
But the necessary corollary of that reform is that you don’t allow government agents a simple get-out to get around the warrant rule itself, and that means that they cannot acquire from a private entity information on US persons that they would need a warrant for if they acquired it directly. This is what Hajar was referring to as closing the data broker loophole, because a lot of these private entities with reams of information on hundreds of millions of Americans are data brokers. But also, we are talking about not handing over NSA foreign intelligence databases, including 702, to a third-party AI provider, and then allowing government agencies to prompt that AI provider entirely outside the structure of querying regulation. So these two necessary reforms go together and have been a priority of congressional and nonprofess- congressional reformers in this space. Hajar?
Hajar Hammado: I, so I agree with what Alex, y- you know, talked about as far as reforms. These are reforms. Dating, closing the data broker loophole and, closing the dark search loophole are big priorities of our coalition. I also wanna touch on one more, which is the electronic communication service provider definition. This is something that we’re incredibly concerned about, and, it came up in 2024. So- Prior to reformat– to, prior to the passage of RISA, which is the Reforming Intelligence and Securing America Act, which became law in twenty twenty-four, ECSPs, which are electronic communication service providers, that can be required to assist in Section 702 surveillance were very narrowly defined as, And to cover companies that directly facilitate and can access communication. So something like Google, AT&T, Meta.
But, during the twenty twenty-four debate, there wa- ri- the ECSP definition, was broadened to encompass almost any entity or person that has access to equipment that stores or transmits communications. So this dramatically expanded the number of American businesses that can be secretly, and warrantlessly compelled to assist the government in tapping into most communications equipment across America. So there are some sort of limited exceptions, but virtually any business that provides Wi-Fi to patrons, such as a commercial landlord, providing office space for a, for example, a media organization and a non-profit, a local campaign could be compelled in this manner. And so this is, one of the most expans- sort of, the language that was included in twenty twenty-four and what was passed in twenty twenty-four is argu- arguably worse than what existed prior to RISA passing.
And so that’s something we’re incredibly concerned about as well, and something that we’d like to see, fixed as par- part of any, attempt to reauthorize Section 702.
Alex Marthews: Hajar, it’s really important and, it throws some light on the current protests over the expansion of data centers as well, because six t- since twenty twenty-four, if a data center is opening in your community, then it is also by definition, thanks to this change in the law, a data center that NSA can have secret access to and exploit without the data center being able legally to let people know about it.
Patrick Eddington: Excellent, additional point there, Alex. I wanna go very quickly to, some of the comments that we’re getting here. One particular person who’s anonymous had this to say, “Very disappointed by the unrealistic views expressed by panelists regarding Section 702 surveillance, which only deals with communications coming from foreign sources which are not entitled to constitutional protections.” would you all like to comment on that?
Alex Marthews: I’d absolutely love to. Let’s talk a little bit about the, standard by which one becomes a target of Section 702. The way that you would hear members of Congress talk about this authority, the only people who get targeted under Section 702 are not only foreigners, they’re the bad foreigners. They’re the terrorists, they’re the America haters, they’re the people who are plotting against the United States. The actual legal standard for becoming a target under this program is not that at all. It’s an incredibly loose standard that says basically that NSA can target you and your communications, and the communications of everyone you’re communicating with, they can target that if you have information that is of foreign intelligence interest to the United States. Under that standard, you could target almost anyone.
You could target Nobel Peace Prize winner Malala Yousafzai, you could qui- you could target, and they have, foreign leaders directly who at least have policy interests, but there’s an array of private individuals who have done nothing wrong and who have not contemplated participating in any crime, who could become a target under this program, and there are nearly 300,000 of these targets. And then you are saying that by virtue of a US person being in communication with that target, then that US person use- loses all privacy in their communications too. And it is just shocking to suggest that this is a limited power. It gives an startling amount of power to NSA and FBI and NCTC in terms of accessing people’s communications.
And while it may be the case that the courts have ruled that people located outside the United States do not enjoy the protection of a warrant rule, I think we can all see that this power is of such scope that it is not a reasonable exercise of US power in certain circumstances, even as applied to foreign nationals.
Hajar Hammado: I just wanna, list a few examples of sort of, misuse of, these authorities. In twenty twenty-one, the FBI alone conducted 3.4 million warrantless searches of Americans’ communications through FISA Section 702. And in twenty twenty-two, the government reported to the FISA court that the FBI misused FISA 278,000 times to spy on Americans. And these abuses are, you know, have gone from, or these searches have been, have ranged from, for example, an FBI analyst running queries on more than 19,000 donors to one congressional campaign, which later a review of those n- searches, found that only eight had potential foreign ties. Um- In June 2022, an FBI analyst improperly searched a US senator and a state senator, and a specialist also searched a state judge who had complained to the FBI about civil rights violations. Rep. Darin LaHood has said that the FBI wrongly searched his name.
So these cases sort of are showing just different examples of how these authorities are not just being used to target, malicious actors abroad, but also to target, you know, government officials, to target s- journalists, political commentators. And there have been consequences for confidential sources and accountability reporting that we’ve seen. We’ve seen people across the political spec- You wanna get in, Alex? Go ahead.
Alex Marthews: I do a bit. And we’re not only seeing that, but because these powers exist and because this bifurcation of so- of the levels of protections exist between domestic and foreign, it gives domestic agencies an incentive to foreignize what is in fact domestic dissent. So in relation to the Black Lives Matter movement, there were FBI searches that were justified under 702 by looking to see whether the Black Lives Matter movement was being funded by foreign powers. The same rhetoric appears in relation to Gaza ceasefire protests, and now even to data center prote- protests. Oh, this can’t be domestic people seeing what’s in the news and actually getting upset about it and peacefully pro- protesting for a redress of grievance, because if it were that, we wouldn’t be able to surveil it.
But if we hypothesize that there is some sort of foreign nexus, then hey presto, we get access to a whole panoply of counter-terrorism powers that we’re gonna gleefully deploy.
Patrick Eddington: You know, one of the- one of the most interesting things, let me just get this in real quick, Sascha, because I think you’ll be able to build off of it. One of the most interesting things has been the consistent claim, by our friends at the National Security Agency that there is simply no way to distinguish US to US from US to foreign traffic, when they, when they do what’s known as upstream collection or internet backbone collection utilizing the Section 702 program. This is actually an issue that, to its credit, the Privacy and Civil Liberties Oversight Board had basically raised year after year after year, basically saying to NSA, “You should be able to come up with a way, to distinguish ultimately between, you know, purely US and US to foreign that might actually be of genuine intelligence interest,” right? And NSA has never been required by Congress to do that.
These are just PCLOB recommendations essentially, right? Strong recommendations to be sure, but that essentially is kind of, I don’t know that I wanna go so far as to use the word lie, but I think it is the misdirection that our friends at NSA engage in when they say, “Look, if we’re collecting against a foreign target,” let’s use Tucker Carlson as an example, since it’s here at Cato, we’ve actually litigated, on that question. You know, Tucker Carlson was not our target. NSA is still not talking about just exactly how much of his communications, they actually picked up on.
But it’s really clear from the NSA IG report, even as heavily redacted as it is, that we got as a result of that litigation, that even in that circumstance, going after a particular foreign target, picking up the communications essentially of an American pundit, American journalist, well, however you wanna characterize Mr. Carlson, that clearly implicated his rights. I mean, there’s just no way to get around it. Hajar just went through a laundry list, of these violations previously, of course, that, the most of which have been serviced by the Privacy and Civil Liberties Oversight Board or otherwise, made public as a result of congressional requirements that Foreign Intelligence Surveillance Court opinions on 702 be released with some periodicity. Sascha, can you build on that as we head towards our close here?
Sascha Meinrath: Yes, and I’ll, I’ll be brief. You know, I want to acknowledge that there’s a reason why this question came in, why this individual believes that Section 702 is targeting foreigners in foreign soil that are doing foreign things, right? And that incorrect assertion is stemming from a nationwide longstanding propaganda campaign to convince us that that is what this program does. And it is sh- all the more shameful because our leadership is saying this even though we have thousands, tens of thousands, millions, tens of millions of violations of that concept. We It’s verified fact. It is not under debate that Section 702 collects information on Americans.
But what we’re told again and again and again is that it does not, and that to me points to the whole framework of accountability and oversight is very clearly broken when these kinds of lies are not just being formulated historically, but formulated right up through and including today’s debate over Section 702 renewal.
Patrick Eddington: You know, in a historical context, again, in the book that I got published last year, “The Triumph of Fear,” one of the cases that I talk about was J. Edgar Hoover’s asce- obsession essentially that the communists, the Soviets specifically, were trying to infiltrate the ACLU, or not the ACLU, the NAACP they were also trying to infiltrate the ACLU as well, but in this case, in the context of the civil rights movement, Hoover simply could not conceive of African Americans being out in the streets, working state and federal legislatures and all the rest of this in order to secure their constitutional rights. He couldn’t conceive of the fact that it would be an organic movement. It had to be the communists who were providing money, providing training, turning people into agitators, and all the rest of that.
And it was fascinating, you know, to come across a lot of these FBI field office reports essentially responding, you know, to Hoover’s, admonitions on this, coming back and finding no evidence, no evidence, no evidence, of this from field office to field office essentially that was going on. So I do think that oftentimes when we have this domestic to foreign nexus, which is the reason I titled the panel as I did, it’s important for people to understand that this is not simply a FISA Section 702, phenomenon. This is the kind of thing that’s been going on, literally for over a century when we go back to the anarchists, a- and all of that. In any event, we are almost out of time here. I want to give each of you an opportunity to give us some final thoughts before we wrap up. So, Alex, why don’t you kick us off?
Alex Marthews: I think the best summary to say is that lawmakers here need your help. There are lawmakers who have genuine concerns about government overreach and excessive government surveillance. There are even lawmakers who care about it irrespective of whether it is President Trump doing it, or President Biden, or President Obama. They do exist, and they are working hard on this to overcome a politics of fear and to ensure that people’s constitutional rights are honored. What we’re talking here about is human thriving, the ability of people to get together and advocate for what they wish for no matter what it is, so long as it is constitutional in itself. And they need to hear that there are ordinary Americans that also care about this.
Your own representatives need to hear that you care about this, and that you’re taking some of your time not because you are paid by George Soros, or not because you’re funded by the communists, or the Russians, or the Chinese, or whoever the enemy is right now. You care, and you should care, and they should care about this. That will give them ammunition to resist what is always heavy pressure from the administration and the intelligence agencies to just let it slide one more time.
Patrick Eddington: Hajar?
Hajar Hammado: S- a lot of what we’re seeing currently and what we’re seeing Americans outraged by flock, you know, automatic license plate readers, fusion centers, FISA Section 702, these are all interconnected fights that both that need, attention from the grassroots level and also from members of Congress. And members of Congress, in addition to state and local, governments are sort of seeing that Americans are outraged about this threat, this growing threat to Americans’ civil liberties and the expansion of the surveillance state. Americans have constitutional ri- a constitutional right to privacy and, you know, they need to be hearing from constituents about their concerns about this. And, you know, Congress, is sort of at a crossroads.
But Section 702 reauthorization is not being brought to the floor because, leadership wants a clean reauthorization and knows that there may be, very likely is, a majority of Congress that wants to see some reform. It’s critical that Congress has time to engage in meaningful debates about these reforms, that we no longer have short-term extensions, and that, this Section 702 gets the time that it deserves, on the, on the House and Senate floor. So with all of that, I think, like, from a demand pr- pro- progress standpoint, we see an issue where they’re not That’s, that’s not about any specific political party, but about the surveillance systems that we’re building today and how they’ll be passed on to whoever’s in power in now or in the future and what A- and so the checks have to be written into law now in a way that also covers surveillance tech issues that’ll arise in the future.
Thank you.
Patrick Eddington: Sascha, the last word is yours.
Sascha Meinrath: So, you know, these are such important issues, and the nexus of all of this is that in a computer-mediated world that is increasingly a smart device-mediated world, which is increasingly an AI-mediated world, all of these problems are gonna become more invasive, more problematic in people’s lives. The false positives will increase. The amount of surveillance will increase. The number of misdemeanors and jokes that get misclassified will increase. This is a very dystopian trajectory that we’re currently on. So what I want to leave everyone with is this notion that the battle royale that’s been going on has been singularly important and will become far more important still, and affect so many more people into this smart device, AI-mediated world.
Make no bones about it, AI are the new snitches, and many of us are using them or subjected to them in our everyday lives, and that is a very bleak new reality that we have to address if we want to maintain a functional, thriving democracy.
Patrick Eddington: Sascha Meinrath, Hajar Hammado, Alex Marthews, thank you so much for carving out the time. My thanks to our audience who joined us, online. Surveillance Week, continues tomorrow. We’ll be examining the Bank Secrecy Act. If you thought this particular panel, was kind of hair-raising, as the expression goes, you ain’t seen nothing yet. For the Cato Institute, I’m Patrick Eddington. Thanks so much for being with us.
