The Convenient Civil Libertarian
A faction of House progressives has announced they'll vote against renewing Section 702 of FISA — the warrantless surveillance authority that allows the intelligence community to collect communications from foreign targets while sweeping up enormous quantities of American communications as "incidental" collection. Their stated reason: the authority has been abused. American citizens have been surveilled without warrants. Civil liberties are at stake.
Every word of that is true. And if it wasn't said by the same people who spent five years calling anyone who raised Fourth Amendment concerns about federal surveillance a MAGA conspiracy theorist, it might mean something.
Section 702 has been a surveillance state expansion vehicle since its inception in 2008. The Foreign Intelligence Surveillance Court — a secret court with no adversarial process and a near-100% approval rate for government requests — has repeatedly been used to conduct backdoor searches on American citizens. The FBI ran approximately 278,000 such queries on Americans using 702-collected data in 2021 alone. That number comes from the government's own disclosure to the Privacy and Civil Liberties Oversight Board. It is not a fringe claim.
The Libertarian Was Here First
People on the libertarian right have been raising alarms about FISA's expansion of domestic surveillance since the Patriot Act era. Rand Paul conducted a 13-hour filibuster in 2015. The House Freedom Caucus and a coalition of civil libertarian Republicans have fought 702 renewal every cycle. The response from progressive Democrats during most of that period was to treat these concerns as either irrelevant or as cover for protecting Russian intelligence assets.
Now progressives have discovered the Fourth Amendment because the surveillance infrastructure they approved has, shockingly, been used against people they like. The FBI's conduct during investigations related to Trump associates, and the documented political targeting by intelligence agencies that has emerged over the past three years, has made it suddenly legible to the left that an unconstrained surveillance state is a threat to everyone — including them.
Good. Welcome. But let's be honest about what's happening: this is not a principled commitment to civil liberties. It is a tactical alliance born from the discovery that the surveillance gun can be pointed in multiple directions.
What Actual Reform Requires
A genuinely principled approach to Section 702 reform requires several things that neither party has been willing to do. First, require individual warrants for any search of 702-collected data involving American citizens — no exceptions for national security carve-outs that consume the rule. Second, terminate the FISA Court's role as a rubber stamp by introducing genuine adversarial representation in proceedings. Third, impose meaningful criminal liability on government officials who conduct unauthorized searches, not just administrative sanctions that end careers gently.
The surveillance state doesn't reform itself. It absorbs oversight attempts, reroutes around statutory restrictions, and re-expands at the first available opportunity. The Church Committee reforms of the 1970s were followed by decades of quiet reconstruction of exactly the authorities those reforms curtailed. FISA itself was a reform measure — look what it became.
So yes, vote against 702 renewal. But understand that a no vote is not a solution. The infrastructure exists. The databases persist. The legal theories that permit their use will outlast any single statutory sunset. Genuine civil libertarians have known this for twenty years. If the progressive left has finally arrived at the same conclusion, the question is whether they'll stay there after the political incentive that brought them here changes again.
History suggests the answer. But hope is free.
