FISA Fearmongering and Disinformation: Presidential Edition

Patrick G. Eddington

Earlier today on his personal social media platform, President Donald Trump called for reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA) as is:

It was not FISA Title VII authorities (specifically, Section 702) that were used by the Obama administration’s Department of Justice (DoJ) to spy on Carter Page, but other FISA authorities, as noted by the DoJ inspector general in its CROSSFIRE HURRICANE investigation. But since FISA’s multiple titles appear to be confusing to the president, I’ll set this one misstatement aside for the moment.

Mr. Trump’s claim that the 2024 FISA reauthorization legislation actually provided new protections for Americans’ constitutional rights is demonstrably false. 

Just after that FISA legislative battle was over, I made the following observation:

Even worse, H.R. 7888 actually expands the reach of FISA Section 702 by broadening the definition of “electronic communications service provider” in a way that will encompass cloud-based storage companies, among others. That provision was condemned even by former Justice Department lawyers who have argued cases before the FISC. 

How much worse has FISA Section 702 been abused since it was reauthorized and expanded nearly two years ago? We don’t know because two key oversight mechanisms—the Privacy and Civil Liberties Oversight Board and the FBI’s Office of Internal Auditing—were effectively destroyed by the Trump regime last year. 

In response to a Cato Institute Freedom of Information Act (FOIA) lawsuit, earlier this month, federal district court Judge James Boasberg ordered the Trump DoJ to turn over FISA Section 702 noncompliance records to Cato no later than April 10. So far as the author is aware, Cato’s litigation is the only form of public oversight action currently underway regarding the Section 702 program. 

You would think that House and Senate leadership would want to ensure that the 702 program could not be used to spy on them or their donors, as has previously been the case. You would also think that since it was just last year that the Second Circuit Court of Appeals found that Section 702 database searches by FBI agents require a warrant to be legal, modifying the FISA statute to ensure compliance with the Fourth Amendment shouldn’t be a big deal. 

And if we had a Congress in which members actually lived up to their oaths to preserve, protect, and defend the Constitution, such changes would indeed take place.

Instead, we have a majority party largely falling in line behind Trump as he calls for a law that should not exist in its current form to be reauthorized indefinitely, citing anonymous conversations with senior military leaders who know that the Iranian military’s most sensitive communications are not being handled in ways that the FISA Section 702 program can actually exploit. 

Whether opponents of a “clean” FISA Section 702 reauthorization can overcome Mr. Trump’s fear-mongering and disinformation campaign remains to be seen.