Civil liberties groups urge spy chief to declassify parts of contested surveillance program

MalBot · March 7, 2025, 9:25pm

A letter sent this week to Director of National Intelligence Tulsi Gabbard urged her to declassify key aspects of a surveillance authority that has been mired in controversy due to past actions from intelligence and law enforcement analysts accused of overstepping legal boundaries and improperly accessing Americans’ private data under the spying power.

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The statute, Section 702 of the Foreign Intelligence Surveillance Act, is regarded in the intelligence community as a vital spying tool that allows the FBI and NSA to retrieve communications of foreigners abroad without a warrant. But the law is contentious because it permits intelligence agencies to access and query communications data — including calls, texts and emails — even when a U.S. person is incidentally involved in a conversation with a foreign target.

The surveillance program was <a href=“Biden signs extension of controversial spying program into 2026 - Nextgov/FCW”>reauthorized</a> in a law signed by former President Joe Biden last April. It is widely believed, and has <a href=“https://www.nytimes.com/2024/04/16/us/fisa-surveillance-bill-program.html”>been reported</a>, that the renewal discreetly expanded 702’s legal definition of “Electronic Communications Service Provider” to include data centers, allowing them to be used as surveillance collection points. Privacy groups argue the change significantly broadens the government’s spying authority and would allow the intelligence community to compel U.S. businesses to assist in Section 702 surveillance matters.

The Tuesday letter from some 20 civil liberties organizations, including the ACLU and Electronic Frontier Foundation, asked that Gabbard declassify the contents of the court documents tied to the supposed expansion. The often clandestine Foreign Intelligence Surveillance Court, which oversees orders undergirded by FISA, <a href=“https://www.intel.gov/assets/documents/702%20Documents/declassified/2023_FISC-R_ECSP_Opinion.pdf”>ruled in a redacted 2023 decision</a> that an unnamed tech firm did not meet the definition of an Electronic Communications Service Provider and therefore could not be ordered to provide stored data to the intelligence community via Section 702.

“Without such basic transparency, the law will likely continue to permit sweeping NSA surveillance on domestic soil that threatens the civil liberties of all Americans,” they wrote.

Civil liberties groups typically align with intelligence officials about the value of 702 when it’s used to collect data on foreign targets but have questioned its effectiveness in cases where Americans’ conversations are queried. The tool was used to <a href=“PCLOB Report Reveals New Abuses of FISA Section 702 | Brennan Center for Justice”>surveil</a> 2020 racial justice protesters and participants in the Jan. 6, 2021 U.S. Capitol riot.

Nextgov/FCW has reached out to the Office of the Director of National Intelligence for comment. The Washington Post <a href=“https://www.washingtonpost.com/politics/2025/03/06/tech-leaders-were-outside-looking-now-they-own-washington/#:~:text=From%20our%20notebooks-,Civil%20groups%20press%20intelligence%20chief%20over%20domestic%20surveillance,-National%20Intelligence%20Director”>first reported</a> the letter on Thursday.

Gabbard’s views on 702 have run atypical to those of past spy chiefs. She has historically been a longtime privacy hawk who publicly called for the dismantling of Section 702 while a member of Congress. In the runup to her confirmation hearing to be DNI, Gabbard reversed her hardline position on the ordinance, deeming it vital for national security.

But notably, in her hearing, she said she still supports a warrant requirement for the intelligence community to query data on U.S. persons. Civil liberties and privacy groups have long called for a warrant measure for 702, but current and former officials say a warrant, among many things, slows down timely investigations into potential terrorist activities and cyberattacks.

Intelligence derived from 702 makes up some 60% of the president’s daily briefings, according to an <a href=“https://www.intel.gov/assets/documents/702%20Documents/702_Top_Headlines_VOL2.pdf”>IC fact sheet</a> published last year.

It’s not entirely clear what legal authorities Gabbard immediately has to order declassification. The 702 ordinance is used mainly by NSA and the FBI, meaning that top officials — including Attorney General Pam Bondi, FBI director Kash Patel and NSA director Gen. Timothy Haugh — may need to weigh in on the matter. Patel, as well as current CIA director and former director of national intelligence John Ratcliffe, have recently said that a warrant requirement is not compatible with the spying power.

The groups in the letter also asked Gabbard to provide an estimate of the number of Americans whose communications are collected under Section 702. Some <a href=“FBI Ran Over 3 Million Searches on Americans' Electronic Data - Nextgov/FCW”>3 million warrantless searches</a> of U.S. citizens’ data were invoked under the law in 2021. The Justice Department’s watchdog said last month it’s <a href=“DOJ watchdog to review FBI data retrieval uses under contested spying authority - Nextgov/FCW”>reviewing</a> how the FBI searches intelligence databases for information on U.S. persons collected and queried under Section 702.

Article Link: Civil liberties groups urge spy chief to declassify parts of contested surveillance program - Nextgov/FCW