Pro-Israel Groups Pushed for Warrantless Spying on Protesters

Today on TAP: The worst fears of reformers of warrantless spying could be realized.

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When the renewal of a key section of the Foreign Intelligence Surveillance Act (FISA) was being debated in this Congress, one of the pieces of evidence from reformers for the abuses in the system was that the law had routinely been employed to spy on protesters in the U.S. Despite the fact that FISA’s Section 702 is intended to be about collection of intelligence on foreign subjects, U.S. persons would often get vacuumed up in the dragnet. And the FBI was caught querying FISA databases to get information on protesters, most recently during the Black Lives Matter protests in 2020.

Despite these concerns and after a bitter debate, Congress passed and President Biden signed a reauthorization of FISA Section 702 with new and expanded powers for surveillance. Just days before that bill became law, Columbia University president Nemat Shafik testified before a congressional hearing on antisemitism. This set off the encampment protests at Columbia, the ensuing crackdown by the NYPD, and now the spread of demonstrations to college campuses across the country.

These two separate strands are coming together to potentially expand warrantless surveillance onto U.S. campuses.

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A letter from numerous American Jewish and pro-Israel organizations, issued earlier this month and recently made public, urged Congress to reauthorize that very spying law, FISA Section 702, for the purposes of spying on “foreign involvement in domestic antisemitic events,” a clear reference to anti-war demonstrations regarding Gaza. The letter cites rising cases of antisemitism since the October 7 Hamas attacks, and makes unfounded connections to foreign threats inside the U.S., as justifications for warrantless spying on American citizens, to “combat terror at home.”

The Anti-Defamation League was one of the signatories to the letter. Its president Jonathan Greenblatt, who has advocated for a more severe crackdown by law enforcement against campus encampments, suggested on MSNBC that students were “Iranian proxies,” without any clear evidence. That could be the kind of insinuation needed to spy on campus protesters.

The letter also strongly opposed warrant requirements for querying databases about U.S. persons whose information was collected under Section 702. An amendment to require a warrant to use that information failed by the tiniest of margins in the House, ending in a 212-212 tie.

In the lead-up to an earlier vote on Section 702, the chair of the House Intelligence Committee, Rep. Mike Turner, held a briefing that advocated for reauthorization by using the example of New York City anti-war protests in the fall of last year and claiming links to Hamas. The implication was that their communications should be tapped. As reported by Wired, the way in which Turner presented the use of Section 702 in this situation would likely be in violation of FISA.

Through Section 702, the government is not permitted to directly “reverse target” a protester’s communications, only a foreign target. What intelligence agencies and the FBI have routinely done, however, is conduct a warrantless backdoor search using general terms on protesters—like “Black Lives Matter”—through a giant database of communications it has gathered legally through Section 702. In this instance, the FISA Court did deem these practices to be an overreach of government authority, though the enforcement against them is extremely limited.

In the context of the current protests, government authorities could conduct these types of backdoor searches on the communications of “anti-Israel protesters” or other search terms. An even more direct case of government spying would be a college student or faculty member, who may be a citizen or studying on a student visa, who regularly communicates with family and friends back home in another country. Those communications could be directly obtained through Section 702 and monitored by the government.

There are also new aspects of FISA passed earlier this month that would expand the scope of backdoor searches on U.S. persons by allowing the government to target immigrants traveling to the U.S., and seize a broad range of companies’ information on Americans, including data centers, commercial real estate landlords, and other communication equipment operators.

The argument from reformers was that these new powers and the lack of safeguards like court warrants would allow the surveillance state to creep forward, incorporating whatever intelligence officials wanted to learn about. There’s not only a road map for this to cover campus protests, but a contingent of pro-Israel groups openly calling for it. That danger is now incredibly present.

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