Before the FBI is monitoring the Americans for protests in Gaza purely for unauthorized espionage

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Before the FBI is monitoring the Americans for protests in Gaza purely for unauthorized espionage

Opinion piece Israel-Hamas

Kia Hamadanchy

February 8, 2024

In the United States, a political leader who disagrees with the views of a protest movement does not give the government permission to investigate those demonstrators. Rep. Nancy Pelosi (D-California) should know that.

Nevertheless, she recently went on CNN and, without citing any evidence, accused protesters calling for a Gaza ceasefire of ties to Russia and called on the Federal Bureau of Investigation to investigate the funding behind these protests. When outrage broke out over that proposed abuse of power a few days later, she doubled down.

It is precisely this kind of danger that requires careful mitigation of surveillance tools such as Section 702 of the Foreign Intelligence Surveillance Act, a law aimed at foreigners abroad but often misused to spy on Americans. That provision of FISA expires in April unless extended by Congress. Lawmakers should not reauthorize this without fundamental reforms.

Two other California representatives, Tom McClintock (R-Elk Grove) and Sara Jacobs (D-San Diego), have advocated reforming Section 702 to protect American privacy. The House Judiciary Committee passed legislation last year to do just that: The Protect Liberty and End Warrantless Surveillance Act would require the government to present evidence of wrongdoing and obtain a warrant before searching the communications of Americans, such as those protesting for a ceasefire.

Pelosi, the former Speaker of the House of Representatives, has been part of the inner circle’s prerogative to monitor findings (the Gang of Eight) longer than anyone in Congress, so she knows the extensive tools that can use the national security apparatus to investigate and surprise demonstrators. . She also knows how those tools can be misused.

There is a long history of the FBI using foreign influence as an excuse to illegally surveil Americans. The agency interrogated Martin Luther King Jr. and other leaders of the civil rights movement, claiming that they may have been under the influence of foreign communists. After September 11, the FBI repeatedly profiled, surveilled, and disproportionately prosecuted Muslim Americans, often under the pretext of ties to foreign adversaries. This shameful legacy would continue if war protesters in Gaza were subjected to unwarranted surveillance.

Although Section 702 requires surveillance to target foreigners abroad, in practice large amounts of communications that Americans exchange with people abroad are also captured and stored for future investigation. If the FBI were to open an investigation into anti-ceasefire protesters, agents would almost certainly use the Section 702 database to find and search protesters’ communications. Vague and unsubstantiated claims of foreign influence or foreign intelligence gathering could lead to a flood of unlawful searches.

The FBI can search this database without showing probable cause, as the 4th Amendment would otherwise require. In most cases, an FBI analyst can search and review an American’s private communications without having to seek further approval.

Last year, government documents revealed that the FBI abused Section 702 to unlawfully interrogate the communications of 133 Black Lives Matter protesters as part of an unsubstantiated investigation to determine whether they were subject to foreign influence.

According to a report from the Privacy and Civil Liberties Oversight Board, non-compliant queries related to civil unrest amounted to tens of thousands between November 2020 and December 2021. Previous searches have also involved two Middle Eastern men who loaded boxes of cleaning supplies into a vehicle and a state court judge who complained to the FBI about civil rights violations.

Section 702 has been abused under presidents of both political parties, and has been used to unlawfully interrogate the communications of individuals and groups across the political spectrum. That is why, with public trust in our leaders and institutions rapidly eroding by the day, lawmakers must strengthen civil liberties protections against abuses of power, not advocate more of them.

Kia Hamadanchy is a senior policy advisor at the American Civil Liberties Union.


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