With less than five months to go until Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires, we still do not have a clear path forward to a reauthorization that would also address the law’s substantial problems.  A major reason for this is an impasse on what to do about the law’s most significant flaw: that it permits the government to seek out the content of Americans’ communications that have been swept up through Section 702 without any suspicion of wrongdoing, let alone a warrant, a problem known as “the backdoor search loophole.” Unfortunately, opponents of reforming the loophole have either failed to understand how the proposed fix to the loophole would actually work, or are describing it inaccurately in an effort to discredit reform.

A common critique of the fix has recently come forward. It wrongly argues that closing backdoor search loophole would require a probable cause warrant to access any information about Americans, and that such a universally onerous requirement is just asking too much of an early-stage counterterrorism investigation. 

During a July 29 Lawfare podcast with Carl Ghattas, Executive Assistant Director of the FBI’s National Security Branch, and FBI General Counsel James Baker, Ghattas said:

“A warrant requirement would have a significantly negative impact …. If we were required to get a search warrant every time we conducted a database check, that attempt to identify threat information would be slowed down exponentially …. where an agent or analyst would take a selector [essentially a search term associated with a communications account] and conduct a database check, that agent would now have to develop probable cause.”  (emphasis added)

Similarly, in a July 26 Wall Street Journal op-ed, Center for New American Security senior fellow Adam Klein wrote that Section 702 reform advocates in Congress are pushing measures that would:

“Bar government officials from searching Section 702 data for information about an American unless they get a warrant, based on probable cause.”

These statements are simply inaccurate, and improperly paint the backdoor search loophole fix as more onerous than it would actually be.

Yes, the most important part of the fix is to require a probable cause warrant to review content—the same obligation that exists in every other situation where the government deliberately seeks out the content of an American’s communications. But the reform proposal for years does not impose that requirement for other types of Section 702 data queries.

Most notably, the text of amendments to close the loophole that were introduced by Reps. Thomas Massie (R-Ky) and Zoe Lofgren (D-Calif.) in 2014, 2015, and 2016 permit queries as authorized under all provisions of FISA and Title 18 of the US Code (domestic law enforcement surveillance provisions). This means that metadata searches that examine, for example, who someone has been corresponding with but not what they have said, can be conducted pursuant to the lower relevance standard – whereby government must simply show that the information sought could aid in furtherance of an investigation – permitted under FISA Pen/Trap laws and Section 215 of the PATRIOT Act, both of which are explicitly included in the reform language.

It is these metadata queries—and the type of information they produce—that Baker, Ghattas, and Klein all claim are most critical to Section 702’s efficacy. For example, according to Ghattas:

“What is relevant is whether that selector [being queried] is associated with someone who poses a threat to our national security.”

Klein similarly argues:

“If an American appears to be radicalizing, the first thing the FBI should do is check the information in its databases to see whether that person has been in contact with known ISIS or al Qaeda operatives” and that it is critical to assess “whether a person of interest has connections to terrorists.” (emphasis added)

Again, the backdoor search loophole fix would not erect the obstacle to answering these questions that Ghattas, Baker, and Klein suggest it would. Metadata queries would be subject to a showing of relevance pursuant to the FISA Pen/Trap statute (50 USC 1842), not a full showing of probable cause.

If Congress closed the backdoor search loophole, investigative efforts could proceed as follows: Intelligence personnel receive a tip that a specific American (or selector of unknown origin) may be coordinating with a terrorist abroad. Based on a showing of relevance to an investigation, the FBI obtains court approval to conduct a metadata query. It then obtains that metadata, and confirms or disconfirms whether the American in question is in fact in contact with any Section 702 targets. If the former, the FBI has “connected the dots” in the manner Ghattas and Klein say is most important, and can proceed with the investigation accordingly, all while having obtained this knowledge without snooping into the contents of Americans’ private communications.

The logic behind the backdoor search loophole fix is simple. If the government is using a foreign intelligence surveillance authority that collects Americans’ communications and data without court approval on the front end, it should follow the judicial approval process when deliberately seeking out Americans’ communications and data on the back end. For content, this means obtaining a probable cause warrant. For communications metadata, this means abiding by the rules for intentionally gathering metadata on whom Americans’ are talking to. If the FBI and reform opponents are going to object to the backdoor search loophole fix, they must at least describe it accurately, and put forward arguments that respond to how the proposal actually works.

The descriptions by Ghattas, Baker, and Klein in fact show why closing the backdoor search loophole – including requiring a warrant to deliberately seeking out Americans’ communications content – is so essential. Under current law and FBI Minimization Rules, absolutely no suspicion is required to query Americans’ emails obtained via Section 702, and it seems quite often the FBI has little to no suspicion when it wants to start poking around.  According to Ghattas:

“Developing probable cause at that early stage of an investigation would be very difficult to do. Often times we don’t know to whom that handle is associated .… We don’t have anything other than a lead or a tip …. we have very little information about that particular selector.”

It’s a terrifying idea that, based on no more than one anonymous tip, the FBI can access Americans’ private communications content.

Imagine the FBI going to the FISA Court and asking to seize an American’s emails or text messages with foreigners simply because they received an anonymous tip, or had one lead, when they might not even know the personal identity of the account they want to snoop on. It’s unthinkable a court would approve such a request, but that is exactly what the FBI contends it should be able to do – with the only difference being back-end access rather than direct seizure – in preserving the backdoor search loophole. A system that permits access to Americans’ private communications based on so little evidence is ripe for abuse.

If the FBI has little to no evidence that an American may be engaged in illegal activities, they should not be entitled to read that person’s private communications. Yet the FBI maintains that because they are using Section 702, this principle no longer applies. Multiple times during the podcast, Baker brushed off complaints about backdoor searches by noting that the information was “lawfully collected.”  This misses the point of a debate on statutory reform. The question is not what the law is, but rather what the law should be.

We need a system that lets the FBI conduct early inquiries into associations and connections pursuant to the standards set out in the FISA Pen/Trap laws and Section 215. But that system must require more than “a lead or a tip” before allowing investigators to seek out Americans’ private communications content, regardless of whether it was collected under Section 702 authorities. Such a system would add critical protection for privacy while preserving investigative capabilities. It’s long past time Congress moved forward to make it law.

Image: RekonDog/Wikimedia Commons.