Biden Administration Asks Court to Allow Extension of Controversial Surveillance Program Before April Expiration

On Behalf of | Mar 6, 2024 | Criminal Defense, Federal Crimes, Felonies |

Federal Government Seeks to Extend Authorization of Warrantless Surveillance

The Biden Administration announced that it would seek will ask a court to renew the certification necessary to conduct surveillance authorized by a controversial surveillance program, set to expire in April, referred to colloquially as Section 702, a Justice Department (DOJ) official said. Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a provision that was added in 2008 that authorizes the U.S. government to target non-U.S. persons reasonably believed to be outside the United States to acquire “foreign intelligence information.” This includes the interception of electronic communications, such as emails, texts, and phone calls, without obtaining a traditional warrant as long as the purported primary purpose is to gather foreign intelligence. While Congress must ultimately reauthorize the program, the DOJ is asking the court to allow a temporary extension to ensure that there is no gap in the coverage of the “indispensable national security tool” as characterized by Assistant Attorney General for National Security Matthew Olsen.

Some Organizations Oppose Section 702 Renewal

Pointing to the federal government’s history of abusing its surveillance authority, organizations such as the A.C.L.U. have opposed the renewal of Section 702 and urge Congress to either allow the authorization to expire or refine the sweeping power it gives law enforcement. Critics point out that while the investigatory tool is meant to target non-citizens of the United States, there is nothing in the authorization to stop law enforcement from collecting the private communications of United States citizens and residents who are communicating with targeted foreign persons. Last year it was revealed that the F.B.I. used the authority granted to it under Section 702 to improperly spy on a United States Senator, a state senator, and a state-level judge, in addition to over 278,000 instances of the F.B.I. abusing its surveillance power from 2020 through early 2021. Generally, prosecutors can then use that information that was collected without a warrant to charge United States citizens and residents, even for crimes that have nothing to do with national security or may have been obtained through an abuse of the surveillance powers. It is important that anyone charged with a crime in which surveillance of personal records and devices played a key role in the investigation hire experienced criminal defense attorneys who know the authorized limitations of their use and can seek to suppress any illegally obtained evidence when appropriate.


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