Congress plans to renew a powerful surveillance tool of the National Security Agency, but a former CIA military imagery analyst is urging lawmakers to reconsider.
Now a civil liberties policy analyst at the Cato Institute, Patrick Eddington argues that the expiring Section 702 of the Foreign Intelligence Surveillance Act violates Americans’ privacy rights.
On paper, FISA Section 702 allows federal intelligence agencies to conduct warrantless electronic surveillance on foreign nationals of suspicion.
In practice, however, the electronic data of American citizens – including emails, text messages, and phone calls – are routinely collected as well.
“Because of the nature of the global telecommunications system, if you make a call from, say, Michigan trying to talk to a source in London, that call is going to pass through a number of different points before it gets to its destination in London,” Eddington told The Center Square.
“And if the person you were calling in London was a target, both sides of your communications – the person you’re calling, and your end of it – are going to get swept up automatically.”
NSA refers to this as “incidental inquiry collection,” but Eddington says there is “nothing incidental about it – it’s inevitable.”
“Because of the word games that folks at NSA play, what they basically said for decades is that this stuff gets acquired – that’s their magic word, acquired – but it’s not actually collected until an NSA analyst looks at it. Now that of course is a lie,” he added. “The minute that they’ve collected it and it’s gone into a U.S. database, that itself is technically the Fourth Amendment-related violation. They’re not supposed to be doing that.”
Not only can intelligence agencies store that data for up to five years, but intelligence agents can and do routinely search that data without obtaining a warrant, known as “backdoor searches.”
“Those of us in the privacy and civil liberties community have always believed that that’s just a straight up Fourth Amendment violation,” Eddington said. “It is a separate search, especially if they’re simply fishing around for information on somebody without necessarily having a criminal nexus involved in it.”
Declassified government documents and reports from agencies like the Privacy and Civil Liberties Oversight Board show that federal intelligence agencies have performed millions of “backdoor” searches over the span of decades, including 57,000 in 2023 alone.
In one of the most infamous known cases, FBI agents scoured the data of 19,000 donors to a congressional campaign.
Tens of thousands of American protestors or those simply suspected of “civil unrest” have also had their communications spied upon, and even some members of Congress had their data searched via Section 702, declassified documents show.
But while many U.S. lawmakers have recently expressed opposition to a clean extension of Section 702, congressional leaders in both parties and both chambers have historically been hesitant to implement reforms.
Eddington told The Center Square that this is because members of leadership have been “consistently co-opted by the intelligence community bureaucracy.”
“The intelligence community bureaucracy has allies in Congress on the committees that are supposed to be their overseers, and those committees have been completely subjected to de facto regulatory capture,” Eddington said.
He pointed to multiple failed attempts by rank-and-file lawmakers across administrations to prevent warrantless searches of American data in the Section 702 database.
Notable reformatory legislation like the Amash-Conyers Amendment in 2014 and Rep. Andy Biggs’, R-Ariz., bill in 2024 failed on the House floor after leadership opposition.
“I could go on and on and on, but I’ve watched this crap – pardon my French – play out over the course of the last quarter century. I went to the Hill to work on the House side in August of 2004. So I’ve been around for pretty much when all these fights took place,” Eddington said.
“I think at the end of the day – certainly in the pre-Trump era – but even now there’s still at the rank-and-file member level an enormous amount of scrutiny, if not just gut level opposition to this particular program and programs like it. But they get kneecapped by leadership too often,” he added.
With the current U.S.-Iran conflict heightening, global tensions and domestic security risks, opponents of reforming Section 702 argue that foreign intelligence gathering is needed now more than ever.
Section 702 was enacted in 2008 to retroactively justify NSA secretly gathering personal electronic communications between U.S. and Afghanistan individuals for years after the Sept. 11, 2001 terror attacks.
Eddington, however, argues that “the notion that they’re going to lose the ability to detect terrorist attacks, to find spies, all the rest of that, is a demonstrable lie.”
“Even If FISA section 702 were to lapse, the base FISA statute remains intact. The ability of NSA to go after purely foreign communication of any type remains intact. And any of the FISA court authorizations for existing FISA section 702 targets would remain valid for a year,” he explained.
“And as a former intelligence officer, I think I can state pretty definitively that you don’t capture spies and you don’t win wars with mass electronic surveillance,” Eddington added.
“You catch spies with very specific targeted intelligence on individuals or networks. And you win wars when you have really solid, critical, verified intelligence from multiple sources…So I think people should really take a deeply skeptical attitude about the effectiveness of these mass surveillance programs.”
