Trust, but verify

Congress must consider it a priority to pass legislation in the next few months reauthorizing the U.S. intelligence agencies to eavesdrop without a court warrant on communications of foreigners who are located overseas, including at times their exchanges with Americans. Still, while giving the law a new lease, Congress ought to insist on additional protections.

By law, the NSA can target the communications of foreigners overseas if they fall into broad court-approved categories of foreign intelligence collection. The NSA targeted 106,000 such foreigners in 2016. For each target, all the people they communicated with were also swept up in “incidental” collection. Congress has been unable to get the intelligence community to disclose even a rough estimate of how many Americans’ communications are caught up in this net, and some reporting of the scope ought to be required as part of the reauthorization.

Understandably, the FBI would like to keep the unfettered authority to query the Section 702 database. But to do so would expose Americans’ information to surveillance without a warrant, undermining Fourth Amendment protections against unreasonable searches.

But the goal should be to put this entire matter on a sustainable, bipartisan foundation so that the intelligence agencies can pursue their vital tasks knowing the rules.