Congress Expands Warrantless Surveillance of Immigrants Traveling to the US

Warrantless Surveillance of Immigrants: On April 19, forty minutes after the ostensible deadline to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), Congress passed H.R. 7888, the Reforming Intelligence and Securing America Act (RISAA). President Biden quickly signed it into law hours later. RISAA reauthorizes Section 702 for two years, provides modest reforms, and includes several controversial changes to the federal government’s spy powers.

Tucked away in the bill is a new provision that vastly expands the federal government’s warrantless surveillance authority at the expense of noncitizens seeking permission to enter the United States, including millions of people seeking visas or simply traveling to the U.S. each year.

Even before its enactment, the authority bestowed by Section 702 had been mired in controversy. After it was uncovered that the National Security Agency (NSA) secretly engaged in warrantless wiretapping of domestic communications, the Bush administration and Congress moved to legalize the practice. The new Section 702, passed in 2008, allowed the U.S. government to collect communications without a warrant of non-U.S. persons believed to be outside of the United States, even if that communication originated domestically and involved “U.S. persons,” which includes U.S. citizens and green card holders.

Section 702 was then reauthorized twice and set to expire again on December 31, 2023. A lack of consensus on duelling reform bills proposed in the House led to a temporary extension until April 19, 2024.

One of the principal issues was whether a warrant was necessary to protect U.S. persons, who had been caught in the federal government’s surveillance of foreigners abroad. Despite only authorizing the “targeting” of non-U.S. persons outside of the United States, Section 702 has allowed intelligence agencies to amass many domestic conversations located in searchable databases. Statutorily, “queries” of these databases must be reasonably likely to retrieve foreign intelligence information or, in the case of the FBI, evidence of a crime.

However, the FISA Court, which oversees and approves intelligence agencies’ procedures for querying the databases, has found that over the years the US government has regularly abused their Section 702 authority to spy on Americans, including Black Lives Matter protesters, members of Congress, and tens of thousands of people involved in “civil unrest.” RISAA ultimately enacted some reforms to limit these practices but didn’t go as far as requiring a warrant for queries of Americans’ data.

During this debate, members of Congress also considered a less visible provision targeted at noncitizen travellers. This new provision would require intelligence agencies to incorporate querying procedures that “enable the vetting of all non-United States persons who are being processed for travel to the United States.” Considering that the Department of State issued more than 10.4 million nonimmigrant visas and 563,000 family-based immigrant visas last fiscal year, its potential breadth is extensive.

In the House, the support and opposition of this “immigrant travel vetting” provision cut across party lines. It was championed by national security hawks, including Chair Mike Turner (R-OH) and Ranking Member Jim Himes (D-CT) of the House intelligence committee. It was opposed by privacy advocates like House Judiciary Chair Rep. Jim Jordan (R-OH) and Ranking Member Rep. Jerrold Nadler (D-NJ). Rep. Jordan spoke on the floor of the House in opposition to this expansion of FISA, highlighting that it would “authorize[] surveillance of a whole new category of individuals.”

A year earlier, the FISA Court had approved narrower querying procedures, which allowed intelligence agencies to use an automated process to check the names, emails, and phone numbers of visa applicants against counterterrorism-related databases. However, the House Intelligence Committee sought to broaden this authority to “all of the Section 702 information available.” Functionally, this provision would also exempt these queries from having to be “reasonably likely to retrieve” foreign intelligence information.

As a result, Congress has now provided intelligence agencies the authority to surveil noncitizens entering the country. Unlike the extensive requirements and limitations on the FBI’s use of queried information, this provision simply states that queries must be used for “vetting” purposes. And, unlike the FISA Court opinion, which focused on using this information for counterterrorism, there’s no such limitation in this provision.

This means that the information of an unknown number of visitors, specialty occupation workers, religious workers, refugees, and diplomats will be entered into the government’s databases and intimate conversations between them, and their family members and employers, could be exposed without an understanding of what the government is looking for. Because the provision is written broadly to include anyone “processed for travel,” noncitizens already in the United States with DACA, TPS, H-1B visas, and others with temporary or provisional statuses, could be ensnared when they leave the country temporarily and try to reenter.

Although it’s unclear exactly how this provision will be implemented, it could arguably allow future administrations to screen individuals with “suspect” profiles and prevent their entry for illegitimate reasons having nothing to do with national security, such as the noncitizen’s ideology or political beliefs.

Unfortunately, U.S. citizens and employers may lack legal recourse to challenge any processing delays of their loved ones’ or employees’ visas based on findings of inadmissibility resulting from this expanded vetting process. This is largely because, under the current interpretation of immigration law, judicial review of consular decisions is severely limited.

Before RISAA passed the Senate, Senator Hirono proposed an amendment to strip the immigrant travel vetting provision from the bill. She was joined by Senators Booker, Durbin, Markey, Warren, and Wyden. However, last minute wrangling to pass the bill before midnight led the amendment to be dropped from consideration.

While it still remains to be seen how broadly the Biden administration will interpret the new immigrant travel vetting provision, its true impact may not be known immediately. However, Section 702 is up for reauthorization again in two years. This will provide an opportunity to shine a light on this process, regardless of who is president at the time.