Maximum public transparency has never been achieved during prior congressional debates over the Foreign Intelligence Surveillance Act (FISA) Section 702 electronic surveillance program. In an effort to break that pattern, the Cato Institute today filed a motion for a preliminary injunction (along with my declaration) against the Department of Justice (DOJ) over a long‐standing Cato Freedom of Information Act (FOIA) request seeking internal DOJ audits of the Section 702 program.
As I’ve noted previously, throughout its 15‐year history, the Section 702 program has been responsible for violations of Americans’ Fourth Amendment rights at scale. Executive branch officials claim that the number of US‐person‐related queries of the Section 702 database have dropped from almost 3.4 million in 2021 to a mere several hundred thousand in 2022—still a radically high number of queries that generally appear to have had little if any connection to a genuine national security threat.
And there is one additional critical fact about the Section 702 program’s abuses that has never received significant press coverage or congressional attention.
The actual internal DOJ audits of the Section 702 program remain secret; only summaries of them have ever been made public. Accordingly, American citizens and Congress have no way of comparing DOJ claims about alleged reductions in violations with what the original audits themselves reveal about those violations.
In an effort to remedy that problem, in June 2023 Cato filed a FOIA request seeking the release of the Section 702 database audits available as of the date of the request. Instead of promptly processing Cato’s request, the DOJ sat on it for months.
Mindful of the looming April 19, 2024, expiration of the Section 702 authority, on February 8, Cato filed suit in federal district court in DC to compel disclosure of those records. With the DOJ still having failed to respond to Cato’s request, today Cato filed a preliminary injunction in the DC circuit court seeking expedited processing and release of the Section 702 query audits on or before March 29. We expect a decision from the court sometime next month.
Had the House Permanent Select Committee on Intelligence (HPSCI) done its job—i.e., actually pushed the DOJ to make the full audits public—Cato would never have been forced to file the FOIA request and the subsequent legal actions in this case.
Instead, HPSCI chair Mike Turner (R‑OH) has been at war publicly and privately with other House GOP and Democratic members on the Judiciary Committee over their efforts to renew the Section 702 program only if it has a warrant requirement for the search of stored US persons data and a ban on the purchase of such information from data brokers. Turner’s actions should cause all House members to reevaluate whether or not the HPSCI should have any jurisdiction over surveillance programs that put Americans’ Fourth Amendment rights at risk.
