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Why Congress Must Reform FISA Section 702—and How It Can
Instituting a warrant requirement would protect Americans against abusive searches of their private communications.
April 9, 2024
This article first appeared at The Dispatch.
Editor’s note: This article is part of a Dispatch debate series. Kevin Carroll made the case for reauthorizing the Foreign Intelligence Surveillance Act’s Section 702.
This week, the House of Representatives is set to vote on whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which will expire on April 19 unless renewed by Congress. This controversial law is unique, but the ways intelligence agencies have abused it to violate Americans’ civil liberties are not. The solution to this problem is familiar, too: Congress must not renew Section 702 without protecting Americans’ Fourth Amendment rights by requiring the government to get a warrant before reviewing Americans’ private communications.
How section 702 is abused to spy on Americans.
Enacted shortly after 9/11, Section 702 allows intelligence agencies to collect the phone calls, emails, text messages, and other communications of almost any non-American located outside of the United States without a warrant. Agencies such as the CIA and NSA must ensure that a significant purpose of the collection is to acquire “foreign intelligence,” a term FISA defines expansively to include any information that merely relates to the conduct of foreign affairs. Otherwise, they face no substantive restrictions. The Foreign Intelligence Surveillance Court (FISC) approves the general rules governing surveillance, but it has no role in approving individual targets.
Section 702 authorizes warrantless surveillance to be targeted only at non-Americans abroad, but Americans’ communications are “inevitably” captured too. The reason is simple: We talk to family, friends, and colleagues who are located abroad, generally for entirely innocent reasons. Recognizing this reality, Congress directed intelligence agencies to “minimize” the retention and use of Americans’ information collected under Section 702. Yet, despite this clear mandate, officials from the FBI, CIA, NSA, and National Counterterrorism Center perform more than 200,000 warrantless “backdoor” searches every year to find and review Americans’ private phone calls, text messages, and emails.
Lax rules adopted by agencies allow intelligence officials to perform backdoor searches whenever they have reason to believe the query will return foreign intelligence (or, for the FBI, evidence of a crime). Given FISA’s capacious definition of foreign intelligence, this low bar should be easy to clear, but officials have repeatedly stumbled over it. Government reports indicate that in 2022, the FBI performed close to 4,000 backdoor searches that violated even its own permissive rules. In another recent one-year period, the FBI violated the rules governing searches of FISA databases 278,000 times.
These violations include alarming abuses. Among many other examples, the government has performed baseless searches for the communications of members of Congress, journalists, and 19,000 donors to a congressional campaign. The FBI has performed “tens of thousands” of unlawful searches“related to civil unrest,” including searches targeting 141 people protesting the murder of George Floyd and more than 20,000 people affiliated with a group suspected of involvement in the January 6 attack on the U.S. Capitol. Most recently—and despite procedural changes implemented by the FBI to stem abuses—FBI agents performed improper searches for the private communications of a U.S. senator, a state senator, and a state court judge who reported alleged civil rights violations by a police chief to the FBI.
Outraged by these abuses, many lawmakers on both sides of the aisle have vowed not to reauthorize the law without “significant reforms.” The key reform under consideration is to require the government to obtain a warrant before examining Americans’ private communications captured through Section 702 surveillance. After all, under the Fourth Amendment, these communications can be obtained without a warrant only because the government is targeting foreigners abroad for surveillance. Backdoor searches, though, are intended specifically to find Americans’ communications. Recent polling from YouGov shows that more than 75 percent of Americans favor this measure.
The government argues that warrantless searches are necessary for national security. But according to an exhaustive review of Section 702 recently undertaken by the independent Privacy and Civil Liberties Oversight Board, the government has provided “little justification … on the relative value of the close to 5 million [backdoor] searches conducted by the FBI from 2019 to 2022.” In the few instances in which backdoor searches proved useful, Board Chair Sharon Bradford Franklin observed that the government either would have been able to get a warrant or could have invoked one of the standard exceptions to the warrant requirement. A warrant requirement would thus protect Americans’ Fourth Amendment rights while ensuring that intelligence agencies retain the tools they need to obtain critical foreign intelligence.
History repeats itself.
There is nothing novel or radical about this proposed reform. To the contrary, warrantless searches for Americans’ communications are flagrantly inconsistent with longstanding constitutional values. Moreover, the abuses that backdoor searches have enabled mirror those that have historically occurred when those values are not honored.
The Fourth Amendment recognizes the sanctity of Americans’ private communications. Beginning in the 1960s, the Supreme Court held that the government needed a warrant, not just to seize a person’s “papers,” but to surveil phone calls in criminal and domestic national security investigations. But the court did not settle whether a warrant is needed to conduct “foreign intelligence surveillance,” meaning surveillance of Americans intended to uncover the activities of foreign powers or their agents.
A decade later, Congress answered that question. Congressional investigations by the Church and Pike Committees revealed in 1976 that the FBI, CIA, and NSA had illegally spied on civil rights and anti-war advocates for decades based on tenuous claims of Soviet influence. Most notoriously, the FBI spied on and attempted to blackmail the Rev. Martin Luther King Jr. But King was just one of thousands of people targeted by federal agents, who employed a wide variety of illegal tactics, including: “attacks on speaking, teaching, writing and meetings; interference with personal and economic rights; abuse of government processes; … factionalization; [and] propaganda.” In response to these egregious abuses, Congress implemented a series of reforms, one of which was the Foreign Intelligence Surveillance Act of 1978.
FISA authorized and strictly regulated foreign intelligence surveillance inside the United States. It was carefully structured to ensure that intelligence agencies had the tools they needed to counter foreign threats without violating Americans’ Fourth Amendment rights. Under the law, if the government wanted to engage in domestic collection of Americans’ communications—including their communications with foreign targets—it would have to get a court order, similar to a criminal warrant, from the newly created Foreign Intelligence Surveillance Court.
This system worked for a time. But after the September 11, 2001, terrorist attacks, President George W. Bush’s administration wanted to collect communications of suspected foreign terrorists, including their communications with Americans, and it did not want to wait for FISC approval before doing so. So, it didn’t. In violation of FISA, the NSA began a massive, warrantless electronic surveillance program that collected large numbers of Americans’ international communications. It was not until this program was revealed by the New York Times that the Bush administration went to Congress seeking legislative approval for the spying.
Ultimately, Congress acceded. The result was the FISA Amendments Act of 2008, of which Section 702 was a key component. As noted, Section 702 allows the government to collect foreign targets’ communications without a warrant, even if they may be communicating with Americans. But Congress never intended or envisioned that this would lead to literally millions of warrantless “backdoor” searches for Americans’ communications collected for foreign intelligence purposes. This undermines both the Fourth Amendment and the principle underlying FISA itself. And it is no surprise that we are again seeing the types of abuses that predated—and prompted—FISA’s enactment.
The need for safeguards moving forward.
With Section 702 set to expire on April 19, Speaker of the House Mike Johnson has scheduled a vote this week in the House on the Reforming Intelligence and Securing America Act. Despite its name, the bill is not a serious reform proposal. Among many other defects, the bill does not contain a warrant requirement for backdoor searches. And the modifications it does make, such as codifying the FBI’s recent internal rule changes, would do nothing to prevent the intelligence agencies’ pervasive abuses of Americans’ Fourth Amendment rights under Section 702. So it is critical that members amend this bill to include the necessary safeguards for Americans’ rights.
A warrant requirement for backdoor searches is not the only surveillance reform that would improve the bill. Congress should close other legal loopholes that intelligence agencies exploit to gain warrantless access to Americans’ Fourth Amendment-protected information, such as by purchasing it from commercial data brokers. But a warrant requirement is a necessary part of ending the flagrant abuses of Americans’ Fourth Amendment rights that are regularly perpetrated in the name of foreign intelligence.
When Congress learned in the 1970s that intelligence agencies had repeatedly abused their authority by spying on Americans without a warrant, it enacted FISA to close the gaps in the law those agencies had exploited. Today, Congress knows that intelligence agencies have repeatedly abused their authority by spying on Americans without a warrant, exploiting legal loopholes that allow them to do so. The solution now is the same as it was then: If intelligence agencies want access to Americans’ private communications, they must first get a warrant.
