Over the years, I’ve given dozens of Rotary talks, usually about the MIT baseball team or forestry, and often leave with a keepsake, like a mug or a pen. On one occasion, I received a coin with the “Four-Way Test of the things we think, say or do” used and recited by Rotarians as a moral code for personal and business relationships. I have that coin to this day in my desk.

The Four-Way Test asks:

1. Is it the truth?
2. Is it fair to all concerned?
3. Will it build goodwill and better friendships?
4. Will it be beneficial to all concerned?

The first question leads the way. Is it the truth? Is this how things work? Is that what happened? As a writer and analyst, I rely on this type of thinking to pursue a deeper understanding of situations and subject matter.

Part I of this series on FISA 702 cites a bi-partisan claim that U.S. government agencies unlawfully snoop on U.S. citizens, violating our Constitutional rights. Is it the truth?

Let’s go to the tape[1] for evidence and examples:

• FBI agents searched communications of protesters across the political spectrum; multiple U.S. government officials, journalists, and political commentators; and 19,000 donors to a congressional campaign.
• NSA agents conducted backdoor searches[2] of women met through online dating apps and a potential rental property tenant.
• Abuses of surveillance databases go back decades, even before FISA 702. In 2013, the NSA confirmed that analysts accessed tools to spy on spouses and ex-lovers. (The “intelligence world” used the shorthand “LOVEINT” when referencing that “program.”)

Congress attempted to appease concerns with FISA 702 by passing the Reforming Intelligence and Securing America Act (RISAA) in April 2024. However, as predicted, RISAA, in effect, did nothing. By Summer 2024, FBI agents started using a different querying tool that accessed communications of U.S. citizens, sidestepping RISAA procedures, and avoiding audits.

So, what is the question? The fundamental flaw in the current set-up is that FISA 702 grants U.S. government agents warrantless access to the private communications of U.S. citizens. What fixes to FISA 702 could support legitimate efforts to secure the U.S. while robustly respecting our Constitutional rights?

We address this question in Part III.

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[1] Otherwise known as the September 28, 2023, “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act.”

[2] FISA 702 authorizes warrantless surveillance targeted at foreigners abroad. However. this inevitably sweeps in communications of U.S. citizens. According to the Brennan Center for Justice, “Despite Congress’s mandate to “minimize” the retention and use of such communications, the FBI, NSA, CIA, and NCTC routinely search Section 702-acquired data for Americans’ phone calls, emails, and text messages. The FBI conducted 57,000 of these “backdoor searches” in 2023 alone…”