Electronic Surveillance Under Scrutiny as Trump Targets Left Wing Groups as “Domestic Terrorists”

Bipartisan opposition to warrantless surveillance law swells with exposure of FBI abuses

(FBI photo from X)

FEW NATIONAL SECURITY DEBATES HAVE RILED UP AMERICANS more than the permission Congress has given the government to eavesdrop on their private emails and phone calls. The legislation that gave these intrusive powers to the likes of the NSA and the FBI is up for renewal later this spring, and signs are that it will face a bumpy road to passage by Congress.

The issue has taken on additional freight because President Trump has ordered the departments of Justice, Homeland Security, Treasury and the IRS to explicitly target left wing groups for investigation, labelling them “domestic terrorists.”

An authority that had its beginnings in retooling legislation for the war on terror, Section 702 of the Foreign Surveillance Intelligence Act (FISA) was one of the many policies that traded liberty for security. Now, in its fourth major vote on renewal, uncertainty surrounds its future—as many argue it should.

A little history is in order here. In 1978, following revelations that the National Security Agency had illegally eavesdropped on civil rights and antiwar activists, Congress passed the Foreign Intelligence Surveillance Act (FISA), which required the government to get warrants from a new, secret federal court to electronically monitor people in the U.S. who were suspected of being agents of foreign powers.

Fast forward to the shocking al Qaeda attacks on New York and Washington on Sept. 11, 2001. In a panic, the George W. Bush administration summarily tossed aside FISA guardrails in the name of national security. In a secret program code-named Stellar Wind and authorized by President Bush, the NSA conducted warrantless surveillance of the electronic communications of Americans. Once the existence of Stellar Wind was revealed, top law enforcement officials, including Deputy Attorney General James Comey and FBI Director Robert Mueller, concerned that it was illegal, threatened to resign unless the program was replaced with a lawful substitute.

Bush backed down, and in response, Congress passed an amended surveillance law, the FISA Amendments Act, which included the now notorious Section 702, which permits the government to conduct warrantless surveillance of non-US persons reasonably believed to be located outside the United States. The stickler, however, is that in collecting information on foreigners, the communications of Americans who are on the other end of those phone calls, emails or texts can be “incidentally” swept up. To guard against the violation of privacy protections laid out in the Constitution’s Fourth Amendment, however, Section 702 requires the “minimization” of that incidental collection, i.e., to restrict access to conversations of those not specifically targeted for surveillance.

(Political Moonshine art)

Repeat Offenders

To its governmental and nongovernmental supporters, such “fixes” insured a proper balance between personal liberty and national security. But over the years, rather than honor the intent of 702’s restraints, law enforcement has repeatedly circumvented the protections for Americans, largely by conducting “backdoor” searches of their communications, without establishing the probable cause needed for a warrant. In an unsealed ruling in 2023 the FISA Court revealed that between 2016 and 2020, the FBI had conducted 278,000 improper searches.

The violations reached far and wide, according to a report by the Brennan Center for Justice at NYU Law School. “To give just a few examples,” it said, “the FBI has conducted warrantless searches of Section 702-acquired information to access communications of Black Lives Matter protestors, U.S. government officials, journalists, political commentators, and 19,000 donors to a single congressional campaign.”

Despite these violations, national security officials have consistently pushed back against proposed limits for 702, claiming that without it, the threat to the nation’s security is profound.

During his confirmation process, FBI Director Kash Patel, called 702 “a necessary tool to protect this country.” DNI nominee Tulsi Gabbard, once a strong critic of 702, found that the price of her confirmation required a U-turn and in her hearing described it as “an essential national security tool that cannot be replicated elsewhere.” Further, officials at FBI and DOJ point to recent reforms that have substantially reduced the number of “backdoor” searches.

From their much criticized performances so far, it may beeasy to dismiss the statements of Trump officials. But their far more respected predecessors embraced the same line.

Consistancy

In 2017, James Comey, despite having taken a strong stance against Stellar Wind, insisted that “Congress must reauthorize” 702, calling it “a vital and carefully overseen tool to protect this country.” In the runup to the 2017 reauthorization vote, the heads of the CIA, the ODNI, the DOJ, the FBI and the NSA issued a joint statement in support of reauthorization, warning that without 702, “vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure.” In 2024, the head of U.S. Cyber Command Gen. Paul Nakasone, a former NSA director, weighed in on that side as well, saying, “We have saved lives because of 702.” Meanwhile, according to a 2024 intelligence report, over 60 per cent of the President’s Daily Briefs were based on Section 702 collection. Still, the 2024 reauthorization of 702, the Reforming Intelligence and Securing America Act (RISAA), included dozens of reforms, among them a drastic curtailing of the number of agents who could query the collected data. But the main issue under debate then was the push for legislation that mandated a warrant to search data stored in Americans’ communications. It failed to pass.

What will happen this time around remains to be seen. In his confirmation hearing, Patel said events in the counterterrorism realm move too quickly to get a judge to sign a warrant.

“Having a warrant requirement to go through that information in real time is just not comported with the requirement to protect American citizenry,” he said. Gabbard, on the other hand, gave a cautious nod to the need for warrants in her confirmation hearing, offering that they “should generally be required.”

Today, Republicans and Democrats are split on the program. Leading up to the 2024 vote, Rep. Andy Biggs (R-AZ) introduced the warrant requirement for any searches of Americans’ electronic communications that had been swept up by 702 collection. The majority of Democrats, including the influential Rep. Jamie Raskin (D-MD), voted against it, saying it didn’t go far enough. House Judiciary Committee Chairman Jim Jordan (R-OH), who supports the warrant requirement, is currently working with Raskin to introduce greater privacy protections, though Raskin’s specific stance on the warrant requirement remains uncertain. Meanwhile, Senators Dick Durbin (D-Ill.) and MIke Lee (R-Utah) have introduced a bill that includes additional restraints, including the warrant requirement for accessing Americans’ communications, as well as other restraints.

Sen. Mike Lee (R-Utah) wants added restraints on surveillance (Fox)

The White House, meanwhile, seems to be leaning toward an 18-month extension of the controversial section as-is. White House Chief of Staff Stephen Miller has announced his strong endorsement of renewal. But the president has yet to make a public statement on his position. Nor has Gabbard signaled the 18-member intelligence community’s current stance on re-authorization.

During the 2024 renewal debate, Trump, out of office at the time, posted his vehement antipathy to FISA court overall, if not to its Section 702 specifically, because of its role in authorizing warrants to surveil a 2016 campaign aide over his suspicious connections to Russia. (“KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” Trump ranted on Truth Social, taking liberty with the facts.) Section702 has also come under MAGA fire for being used to investigate suspects in the Jan. 6 insurrection at the U.S. Capitol.

Expanded Access

In many ways, today’s 702 debate carries even more significance than in the past. Beyond the specifics of the FISA process, the Trump administration has campaigned to make it easier for the government to share the private data of Americans with a wider circle of security agencies. In March of 2025, Trump issued an executive order intended to give government officials greater access to information on U.S. citizens. In the name of efficiency, The Hill reported, Elon Musk’s Department of Government Efficiency, or DOGE, attempted to remove barriers to information-sharing among government agencies such as the Social Security Administration, which housed “medical information, bank information, tax information, and more, thereby expanding exponentially access to private information on Americans.” Last June, the administration further ordered states to provide information to the federal government in unprecedented ways. On Feb. 26, a federal judge ruled that the IRS violated federal law “approximately 42,695 times” when it shared confidential taxpayer addresses with immigration enforcement officials last summer.

If passed, the reforms proposed by Durbin, Raskin and Lee will mark an important shift in the uses of Section 702, restoring constitutional protections that were tossed aside in the name of national security. Should the warrant requirement and other suggested reforms fail to pass,however, the erosion of civil liberties in the name of security will have taken yet a firmer step backwards.

In a piece that appeared in the Atlantic two years before the passage of Section 702, journalist James Bamford, best known for his authoritative reporting on the NSA, reminded readers of Senator Frank Church’s dire prediction should Congress and the intelligence oversight committee he headed fail to reign in domestic surveillance powers.

“I know the capacity that is there to make tyranny total in America, and we must see to it that [the National Security Agency] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss,” Church said. His concluding words are worth remembering today: “That is the abyss from which there is no return.”

SpyTalk Contributing Editor Karen J. Greenberg is the author of Rogue Justice: The Making of the Security State (2016), among a half dozen other books.