Administration Apparently Planning To Blow Off FISA Court’s Ordered Fixes For Section 702

It wasn’t all that long ago that GOP legislators were collectively stonewalling a clean reauthorization of Section 702. Three years ago, these legislators were seeking to end the FBI (and other IC components’) access to Americans’ communications via “backdoor” searches of the NSA’s supposedly “foreign facing” collections.

It wasn’t that the Republicans cared that Joe Public was being subjected to warrantless domestic surveillance. It was that they were being subjected to warrantless searches of their communications — something that came to light as the result of multiple investigations pertaining to Trump’s first administration.

Now that the GOP has control of the White House again, Republicans are back to not caring about the warrantless searches of US persons’ communications enabled by FISA loopholes very few congressional reps seriously want to see closed.

Another Section 702 reauthorization attempt is only weeks away. Reps who want more of the same thing we’ve been subjected to for decades have until the end of April to push a clean reauthorization through. Unfortunately for them, the FISA Court — while allowing the program to continue whether or not Congress can pass an extension — has made it clear the program needs to be overhauled because it’s still being routinely abused to perform warrantless searches targeting Americans’ communications.

The annual recertification, issued last month in a classified ruling, means that the program can continue to collect phone calls and emails through March 2027 — even if Congress fails later this month to renew the statute that underlies it.

But the judge who issued the March 17 ruling also objected to tools that agencies with access to the raw data — like the C.I.A., F.B.I. and National Security Agency — have created to allow analysts to process messages, according to unclassified talking points the administration sent to lawmakers in recent days.

The main issue is the filtering tool utilized by agencies with access to the NSA’s collections. The filter allows analysts to drill down the data to only return results pertaining to specific people who have communicated with a foreign person. It would appear agencies like the FBI are using this filter to search for US persons — something that’s supposed to be subjected to additional limitations.

From the talking points detailed by the New York Times, it seems that isn’t the case, which is why the FISA Court is ordering the government to “re-engineer the filter” to force analysts to comply with restrictions pertaining to access of US persons’ communications.

The Trump administration is allegedly “weighing” whether or not to comply with this FISA court order. The only thing that could make it comply would be to codify the order during the reauthorization process. This administration simply isn’t willing to do that.

The Trump administration wants Congress to extend the statute without changes. 

And that’s why Senator Ron Wyden is, again, letting the American public know the current administration is actively arguing against the privacy interests of millions of American citizens:

“The compliance problems are bad enough, but, incredibly, rather than fix them, the Trump Administration is considering appealing the court ruling so that they never have to. This is a highly aggressive and unusual move indicative of an administration that would exploit every angle to expand its surveillance at the expense of Americans’ rights.

“Instead of addressing these problems, opponents of reform are going to try to jam a straight reauthorization of section 702 through Congress next week, while the American people are still in the dark. That’s unacceptable. This court ruling needs to be declassified so that Americans can understand what the Trump administration is actually up to. And Congress must vote for real reforms to protect Americans’ rights.”

I won’t even factor in Trump’s opinion here, because it doesn’t really matter. He doesn’t know enough about anything to be considered qualified to engage in this discussion. Further, this isn’t even necessarily a Trump thing. Pretty much every presidential administration has been unwilling to upset this particular apple cart, even when plenty of evidence of extensive rot has been made public.

But this one’s particularly problematic for the GOP, which spent most of the Biden years claiming Section 702 abuse was evidence of a “deep state” conspiracy against Trump and his congressional supporters. Now, they’re arguing the opposite: that the “deep state” it so recently opposed should be allowed to do what it wants for as long as it wants to… so long as it’s not sweeping up their communications.

Status quo seems likely to prevail yet again, especially with the Trump Administration clearly interested in increasing the amount of domestic surveillance perpetrated by Intelligence Community components. After all, without it, the “worst of worst” day laborers and factory workers can’t be kidnapped by federal officers and members of the fearsome, centrally organized terrorist group known as “antifa” can’t get caught in dragnets that are supposed to be targeting foreign adversaries. It’s going to be more abuse for the stupidest imaginable reasons because that’s just how things are going to go as long as this iteration of the GOP remains in power.