Credit: (AP Photo/Jacquelyn Martin)

WASHINGTON – U.S. intelligence officials now have the ability to access data of American citizens who use the internet in a variety of places, from commercial buildings and grocery stores to gyms and office spaces, through a warrantless surveillance program used to gather information about foreign nationals.

While the program is directed at foreign nationals, the U.S. often accesses the communications of American citizens who talk, text, email or generally interact with people abroad through what are known as “backdoor” searches.

Under the program, the U.S. government can compel communications companies like Verizon or Google to turn over data about foreigners targeted for anti-terrorism or intelligence purposes. But by rewriting the law this month, Congress expanded what sort of entity the U.S. government could demand turn over electronic data to include companies like commercial landlords that “merely have access” to a router, as privacy groups said in a recent letter to Senate leaders.

“Basically, any business that provides Wi-Fi to its customers,” Noah Chauvin, counsel at the Brennan Center for Justice, a legal and policy group based in New York City, said in an interview. “Commercial landlords, laundromats, hardware stores, you name it. Starbucks would fall in here.”

Booker, Menendez voted no

Most New Jersey House members voted for the bill to reauthorize the program, officially called Section 702 of the Foreign Intelligence Surveillance Act, though Democratic Sens. Cory Booker and Bob Menendez voted against it as a campaign to block the bill by civil rights groups, privacy organizations and conservative and liberal members of Congress fizzled.

President Joe Biden signed the bill into law April 20.

Beyond expanding what entities can be considered an “electronic communication service provider,” Congress added new sections to the law that broaden U.S. security agents’ ability to dig through the digital footprints of immigrants coming to the country and people involved in drug trafficking.

‘There’s certainly a nexus between being marginalized and warrantless surveillance.’ — Sumayyah Waheed, Muslim Advocates

The prospect of surveillance programs has echoes of the increased police activity in and around New York City after the terrorist attacks of Sept. 11, 2001, when the New York Police Department surveilled Muslim communities, including in northern New Jersey, without evidence of wrongdoing.

In 2018, the NYPD paid legal fees and damages following lawsuits from Muslims in New Jersey who accused the NYPD of surveilling them because of their religion.

After a legal settlement, the NYPD disbanded its group that specifically surveilled Muslims.

Local policing

Along with new surveillance programs, cooperation between federal and local police was a byproduct of the post-9/11 era, said Sumayyah Waheed, senior policy counsel with Muslim Advocates, a civil rights group created in 2005.­­

“Local policing can end up feeding into federal investigations or vice versa,” Waheed said by phone, adding that coordination between federal agencies and the NYPD had local effects in New Jersey and neighboring states. With this backdrop, the NYPD also mapped where Muslims lived in the tri-state area of Connecticut, New York and New Jersey, Waheed said.

‘I couldn’t vote in good conscience to reauthorize FISA’s Section 702 program for two years without significant reforms to prevent federal authorities like the FBI from searching Americans’ private electronic communications without a warrant.’ — Rep. Frank Pallone (D-6th)

“For the community, it really was scrutiny, surveillance and monitoring at every level,” said Waheed, whose group is critical of the new FISA expansion. Marginalized groups, like people who are Muslim, Black, African, Middle Eastern, Arab or South Asian, face more surveillance than the broader public, Waheed said. “There’s certainly a nexus between being marginalized and warrantless surveillance.”

The central objective of lawmakers and advocates who wanted to reform the program was to add a requirement that the federal government obtain a warrant before accessing the data of U.S. citizens.

More on the NJ no vote

Reps. Jeff Van Drew (R-2nd) and Chris Smith (R-4th) said in recent interviews with NJ Spotlight News they would not vote to reauthorize the program if it did not include a warrant requirement for the government to access the data of U.S. citizens.

Van Drew and Smith, along with Reps. Frank Pallone (D-6th) and Bonnie Watson Coleman (D-12th), voted against passing the bill and for a bipartisan amendment to add a warrant requirement.

“I couldn’t vote in good conscience to reauthorize FISA’s Section 702 program for two years without significant reforms to prevent federal authorities like the FBI from searching Americans’ private electronic communications without a warrant,” Pallone said in a statement to NJ Spotlight News. “The House-passed bill only included minor reforms and kept provisions in place that will allow the government to continue to spy on Americans without reasonable cause.”

Watson Coleman said she voted no for similar reasons. “As a former member of the House Homeland Security Committee I understand the importance of giving our intelligence services the tools they need to keep Americans safe,” she said in an emailed statement. “The Constitution’s protection against warrantless searches is an important provision protecting Americans against government overreach.”

During the floor debate in the House, lawmakers who opposed reforming the program said the FBI and other agencies that access its database are making reforms and that federal judges scrutinize the program every year.

“[There are] federal judges who crawl all over this program looking for constitutional violations and looking for violations of law, and since 2009, they have recertified this program,” said Rep. Jim Himes, a Connecticut Democrat and high-ranking member of the House committee that oversees intelligence agencies. “It is the most scrutinized intelligence collection program that we have.”

Booker’s pitch for disclosure

In the Senate, Booker tried without success to attach an amendment before passage to require the government to disclose if information it obtained was gathered through warrantless surveillance.

The National Security Agency gathers data under the program into a central database, which other agencies, including the CIA, the FBI and the National Counterterrorism Center, can search.

In a recent year-long period, the FBI violated the search rules when looking through FISA data more than 278,000 times.

Government officials credit the program, created in 2008, as a linchpin in anti-terrorism and national security operations, including the killing in 2022 of Ayman al-Zawahri, an al-Qaida leader.

Violations of the search rules

But it has also led to warrantless data searches of U.S. citizens, including high-profile cases in which the FBI performed improper searches of protestors against police violence in 2020, a U.S. senator and a state court judge who brought allegations of civil rights violations to the FBI, according to a memo U.S. officials released last year.

In a recent year-long period, the FBI violated the search rules when looking through FISA data more than 278,000 times.

Other recent abuses include searches of reporters and political commentators,  and the arrest in 2020 of 141 people who were demonstrating against police violence after the police killing of George Floyd.

“At the time of the queries, FBI personnel had no information connecting the individuals or the conduct to information that would be contained in FBI’s Section 702-acquired information,” a report by an independent body that oversees the 702 program says.

‘One thing we might see, which would be legal under the law, but would be really kind of scary, would be the government targeting journalists and the news media.’ — Noah Chauvin, Brennan Center for Justice

The U.S. government has shown how the program led to “genuine national security success stories,” Chauvin said. “I think there is absolutely intelligence value in this program,” he said. Federal officials can cite examples of 702 leading to “genuine national security success stories,” Chauvin said. Not so with using the program to sift through the data of American citizens, he said. “There’s very limited intelligence value to U.S. person queries, and there’s no evidence that reforms, such as a warrant requirement, would in any way limit that value.”

Fears about targeting

Privacy groups said the recent expansion of the 702 program could lead to the targeting of government critics or reporters trying to get information from foreign sources.

“One thing we might see, which would be legal under the law, but would be really kind of scary, would be the government targeting journalists and the news media,” Chauvin said. After identifying reporters in contact with foreign sources, “the government could compel, through the commercial landlord for a news organization, to give the NSA access to communications equipment.”

Chauvin added, “That’s something that would be entirely legal.”

Chris Baumohl, a law fellow at the Electronic Privacy Information Center, said in an interview this new section is particularly worrisome. In an era when digital information swirls throughout daily life, there’s a difference between what  private technology companies and the U.S. government can do.

“The government can jail you. It can fine you. It can coerce you in ways that tech companies cannot,” Baumohl said.