US’ mass surveillance sans warrant slammed

Experts term it dangerous, urge Congress not to allow extension of draconian 'law'

The US government is conducting mass, warrantless surveillance of Asian Americans, especially Chinese American scientists, under a controversial intelligence authority that experts say is "blatantly unconstitutional" and "dangerous".

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, was enacted after 9/11 to make it easier for the government to collect the communications of suspected foreign terrorists. The law allows the government to target almost any foreigner abroad and to collect all their communications without a court order.

The law will expire on Dec 31. The Joe Biden administration has been lobbying Congress for months to renew Section 702 without any changes, saying it is a critical tool for counterterrorism operations, cybersecurity and understanding rivals such as China.

But legal experts and civil rights groups say the law violates the Fourth Amendment of the US Constitution, which protects people from unlawful searches by the government. A coalition of organizations is urging Congress not to reauthorize Section 702 without sweeping reforms.

"For years, the FBI and other agencies have used provisions of FISA and other authorities to conduct backdoor searches about Americans at an alarming scale," said Democratic US Representative Pramila Jayapal of Washington state, a member of the House Judiciary Committee, at a panel discussion examining the "perils of warrantless surveillance".

Such warrantless surveillance has included phone calls, text messages, emails and other electronic communications between US persons and people living in other countries, said Jayapal.

Although the original purpose of Section 702 was to serve as a counterterrorism tool, most recently, government officials have used it primarily to combat espionage, cyberattacks and often China.

The Asian American community has been unfairly targeted, said Jayapal: "And on top of that, we Asian Americans are still too often viewed as perpetual foreigners, even though many of us have lived in the United States for generations. Too many question our loyalty to this country.

"A clean reauthorization of Section 702 is a non-starter," she said.

Ashley Gorski, a senior staff attorney for the National Security Project at the American Civil Liberties Union, said there is a bipartisan consensus in Congress that significant, meaningful reforms are necessary and that a clean reauthorization isn't realistic.

'Blatantly unconstitutional'

"That is just so blatantly unconstitutional," said Gorski, adding that the scope of the surveillance is "incredibly broad".

Gang Chen, a professor of power engineering at the Massachusetts Institute of Technology, was a victim of warrantless surveillance, which led to his wrongful arrest and prosecution for alleged ties to China. But the government dropped all charges against him later.

He believes one of the reasons why he became a target was a few communications with the Chinese embassy in the US.

"I had a few email communications with them and reached out to them for help with a visa to China," said Chen. "It was normal communication. But the government had distorted this communication as evidence (of spying for China)."

He said he wasn't surprised at recent reports that top scientists of Chinese origin are leaving the US, "given what people have seen and what I went through".

However, it is difficult to hold the government accountable in the courts for illegal surveillance because "secrecy is a huge problem", said Gorski.

"When agents, government officials don't have to show fact-based evidence of criminal wrongdoing, it is so much easier for them to fall back on prejudices and to end up singling out people who should not be singled out," said Elizabeth Goitein, senior director in the Liberty and National Security Program at the Brennan Center for Justice.

The warrant requirement is meant to protect against such prejudice, but over the past 15 years, it has become "abundantly clear" that it has failed to prevent the government from using Section 702 to get around those requirements, said Goitein.

The annual report of the Office of the Director of National Intelligence shows the FBI conducted about 204,000 warrantless searches in 2022 alone.

"This (Section 702) is a bait-and-switch," she said. "History tells us this is a very dangerous door open."