The Biden Administration has declared its support for the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless "upstream" surveillance of phone calls, texts, and virtually every electronic form of communication.
Section 702 allows the United States intelligence programs to intercept the communications of Americans so long as their primary target of the surveillance is located in foreign territory and the surveillance is conducted for the purposes of intelligence gathering. Still, critics say that warrantless surveillance violates the privacy rights of Americans who can still face criminal charges for the incidental interception of their communications — even when those communications are of no interest to any intelligence agency.
The Biden administration sees the programs, which once — and likely still does — included commercial partners like Facebook and Google, as a critical component to the nation's intelligence network. According to a statement from the administration, Attorney General Merrick Garland and Director of National Intelligence Avril Haines co-wrote a letter that was delivered to the congressional leadership urging them to reauthorize the programs. "This authority is an invaluable tool that continues to protect Americans every day and is crucial to ensuring that U.S. defense, intelligence, and law enforcement agencies can respond to threats from the People’s Republic of China, Russia, nefarious cyber actors, terrorists, and those who seek to harm our critical infrastructure," the statement reads.
"Reauthorization of Section 702 and other expiring FISA provisions is a top priority for the Administration. I have asked Principal Deputy National Security Advisor Jon Finer to coordinate the reauthorization effort for the White House, in close partnership with the Department of Justice, the Office of the Director of National Intelligence, and other federal partners, as we engage constructively with the Congress to preserve this essential tool for protecting the United States."
The American Civil Liberties Union opposes the surveillance program and has been representing the Wikimedia Foundation, which filed a lawsuit against the National Security Agency. According to the foundation popularly known for its crowd-sourced encyclopedia, the surveillance programs created a "chilling effect" on traffic to the site. Following Edward Snowden's 2013 leak of the global mass surveillance programs operated by the United States and its allies, Wikipedia pages related to sensitive topics allegedly saw a large drop in readers.
Ultimately, the Supreme Court denied Wikimedia’s petition. Previously, the U.S. Court of Appeals for the Fourth Circuit accepted the government's explanation of “state secrets privilege” and dismissed Wikimedia's lawsuit.
“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression — two cornerstones of our society and the building blocks of Wikipedia,” said Wikimedia Foundation legal advisor James Buatti. “We will continue to champion everyone’s right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year.”
