Editor’s Note: This is part of a multi-part series on the FISA Section 702 reauthorization and reform debate.
As momentum to reform the sprawling Section 702 surveillance program continues to grow, current and former intelligence officials have mounted a public relations campaign defending their spying powers. They have relied on an old playbook, attempting to minimize the impact of this spying on Americans while fearmongering about the supposed dangers of reforms. But that playbook no longer works. Hard-fought transparency over the past decade has shown what privacy advocates, civil libertarians, and even then-Senator Biden predicted from the start: Section 702 is used to engage in warrantless surveillance of Americans in huge numbers, agencies have repeatedly flouted constraints, and far stronger safeguards are required to protect Americans’ constitutional rights. The intelligence agencies are loath to accept limits on their powers, but that is exactly why Congress must act.
Remarkably, even as officials now admit that intelligence agencies repeatedly violated court-ordered rules intended to protect Americans, they are stonewalling commonsense reforms in Congress. If the purpose of Section 702 is to “target” foreigners for intelligence gathering, then officials should have no qualms about imposing robust safeguards for Americans. This should be an easy path to preserving the purported value of the Section 702 program when it comes to surveilling foreign adversaries.
But for too long, officials have tried to have it both ways—claiming that the law was not intended to spy on Americans, while using Section 702 to do just that.
Today, it is undeniable that intelligence agencies use Section 702 to surveil Americans as well as foreigners. It has become a domestic surveillance tool, with agents and analysts routinely searching through the enormous pool of collected data for the private communications of Americans. With that fact finally in the open, the rules written into the law should reflect the bedrock protections the Constitution requires. Section 702 should not be a way for the FBI, NSA, and CIA to quietly circumvent Americans’ constitutional rights.
First and foremost, that means imposing a warrant requirement when agents and analysts search Section 702 data for the private communications of Americans—whether that’s for evidence of a crime or foreign intelligence purposes. As explained below, the examples officials have put forward do not undermine the case for a warrant requirement when it comes to backdoor searches. They are compatible with it.
In this analysis, we address some of U.S. intelligence officials’ most common distortions and deflections as they attempt to fend off urgently needed reforms. Among them, (1) efforts to downplay and obscure the program’s impact on Americans; (2) fearmongering to fend off a warrant requirement for Americans; and (3) the assertion that courts have uniformly blessed this surveillance, notwithstanding the government’s persistent efforts to thwart full and fair judicial review.
Congress should not let the national security establishment’s worn Section 702 talking points deter it from the important task of fundamentally reforming this mass surveillance program to safeguard the constitutional rights of Americans.
Section 702 Has Become A Domestic Surveillance Tool
Proponents of Section 702 bristle at civil liberties organizations’ claims that Section 702 is being used as a domestic spying tool. Former intelligence officials, including George Croner and James Petrila in their recent piece, describe Section 702 surveillance as a tool used to monitor foreign targets with limited impact on Americans. At times, boosters of 702 surveillance have downplayed privacy and civil liberties concerns, using the term “incidental” to wrongly suggest that the intrusion on Americans’ emails and phone calls is de minimis. And government lawyers have argued that Americans have only a “limited” privacy interest in the personal communications swept up. These claims do not tell the public the full story, especially given courts’ recognition that the privacy interests at stake for Americans are “substantial.”
In 2022, FBI agents searched Section 702 databases over 200,000 times for information about Americans, without ever obtaining warrants for those searches. The NSA and the CIA, for their part, also conducted more than 4,600 warrantless backdoor searches of Americans last year—no small number. A surveillance tool that’s used over 200,000 times a year to search for information about Americans is a domestic surveillance tool. Some examples of the people FBI agents have targeted with queries: Black Lives Matter protestors; January 6 suspects; 19,000 donors to a congressional campaign; a U.S. Senator, a U.S. Representative, and a state court judge; and even members of the public invited to the FBI’s Citizens Academy. Does this sound like a spy tool reserved for foreigners overseas?
Section 702 proponents often focus on the recent reduction in the number of backdoor searches, but that does not mean the problem is solved. It is true that, in the recent past, the FBI conducted millions of these searches. But the fact that the use of Section 702 for domestic spying was even more prevalent two years ago should not be used to mask the scale of the FBI’s backdoor searches today. 200,000 backdoor searches of Americans per year is an enormous number of searches—all of them without the bedrock constitutional protection of a warrant.
While officials argue the searches are “lawful” because the information is already in the government’s possession, the Second Circuit has rejected that premise. It has held that querying Americans raises serious constitutional concerns—and is a distinct “Fourth Amendment event” from the initial warrantless collection targeting foreigners. Because of this, the question of how the government may query and exploit Americans’ private information swept up under Section 702 is an open question the federal courts have not yet resolved. As we and others have argued, these warrantless searches of Americans’ private emails, messages, and phone calls violate the Constitution.
The FBI has attributed the recent decline in backdoor searches to revised internal procedures, but those policies do not provide adequate protection today nor any guarantees for the future. For years, the FBI encouraged agents to engage in “maximal querying” of Section 702 databases in all manner of investigations, treating this data like the “FBI’s ‘Google.’” The FBI has engaged in rampant violations of its own querying rules, and even now is conducting hundreds of thousands of searches of Americans each year without getting a warrant. Against this backdrop, a warrant requirement and other safeguards from Congress are essential. Under the current rules, the FBI could easily abuse and expand these searches once again. The agency has a long track record of using unsubstantiated claims of “foreign influence” to justify illegal surveillance of Americans, stretching from its recent backdoor searches of racial justice protestors to surveillance of civil rights activists in the 1960s and 70s.
Proponents also point out that the FBI has access to only a subset of the data vacuumed up by the NSA under Section 702. But even that subset involves surveillance of thousands of targeted individuals and groups, whose communications with Americans are amassed in FBI databases, stored for five years by default, and subjected to routine backdoor searches by agents around the country.
Section 702 defenders claim that there are statutory guardrails to protect against the excessive use of backdoor searches, but in reality those guardrails have repeatedly proven insufficient and ineffective. For example, proponents often argue that Section 702 requires the FBI to obtain a judicial order before conducting backdoor searches in cases unrelated to national security. But that narrow requirement applies solely to one type of investigation—predicated criminal investigations—and so for years FBI agents simply ran backdoor searches at earlier stages of their investigations. The protection is a mirage, and it’s baldly misleading to claim that it has provided meaningful protection against FBI abuses.
In fact, according to the FISA Court, the FBI has never once complied with this court-order requirement—though it has violated it dozens of times. All in all, years of rampant compliance violations show that the FBI cannot be trusted to police itself.
Moreover, it would be wrong to focus exclusively on the FBI when it comes to Section 702: the NSA stockpiles a huge trove of data by targeting more than 240,000 foreign people and groups per year, systematically scans internet communications as they enter and leave the United States, and together with the CIA conducts backdoor searches of Americans thousands of times each year. These warrantless searches, conducted for foreign intelligence purposes, violate Americans’ constitutional protections as well.
Impose a Warrant Requirement to Protect Americans
To guard against these repeated abuses and place Section 702 on sound constitutional footing, privacy advocates have urged Congress to adopt a far-reaching set of reforms—chief among them, a warrant requirement for backdoor searches of Americans. (For example, see here, here, and here.) In resisting reforms, intelligence officials and others have often cited examples of the program’s utility in surveilling foreign adversaries, arguing that Americans would be in danger without Section 702. But this drumbeat is not responsive to reform proposals—it says nothing about why a warrant requirement for Americans would be unworkable.
Indeed, the examples officials have put forward do not undermine the case for a warrant requirement when it comes to backdoor searches—they are compatible with it. The government’s claimed successes involved uses of Section 702 where (1) there was no backdoor search at all; (2) the backdoor search occurred after the government had probable cause, and so it could have readily obtained a warrant; or (3) an exception to the warrant requirement would have applied, such as obtaining consent from the person or victim being queried. This is true of the claimed kidnapping and hacking incidents that officials continue to cite (with virtually no further details). As officials know, in genuine exigent circumstances such as an immediate threat to life, the Fourth Amendment permits the government to conduct a search without first obtaining a warrant. There is simply no evidence that a standard warrant requirement—a protection long enshrined in the Constitution—would harm national security.
As PCLOB member Travis LeBlanc explained, the government has pointed to only “minimal to negligible examples” of the value of warrantless backdoor searches. On the other side of the scale, a warrant requirement would significantly protect Americans’ privacy rights and restore constitutional norms.
In the face of such pushback, officials may attempt to marshal new “success stories.” But it’s worth bearing in mind that the intelligence agencies have a track record of exaggeration when counting surveillance successes in other contexts. In 2013, as the intelligence agencies scrambled to defend the NSA’s now-defunct bulk phone records program following revelations by Edward Snowden, officials claimed the program had helped thwart or prevent dozens of terrorist plots. Senator Leahy, after reviewing the government’s secret list, stated: “The list simply does not reflect dozens or even several terrorist plots that Section 215 helped thwart or prevent—let alone 54, as some have suggested.” An exhaustive review by the Privacy and Civil Liberties Oversight Board found the same.
In short, even if Section 702 has proven useful in monitoring foreign targets, that is no reason to reject a warrant requirement when it comes to backdoor searches targeting Americans.
Given current headwinds, it seems that the Biden administration may be preparing to endorse minor limitations in hope of heading off major reforms. At the end of July, the President’s Intelligence Advisory Board (PIAB) issued a report on Section 702, recommending that the FBI’s use of the program should be limited to national security purposes. But that would be an incredibly modest limit. It is essentially an effort to preserve the current status quo. It would still leave the door open to hundreds of thousands of warrantless backdoor searches each year, and would allow the intelligence agencies to use the “foreign intelligence” label to sidestep independent judicial approval—notwithstanding the abuses of the past. It would stop far short of requiring a warrant whenever agents or analysts seek to target an American’s private communications with a backdoor search.
Inadequate Court Review of Section 702 Surveillance
Section 702 proponents, including Assistant Attorney General Matt Olsen, often claim that every court “that has looked at 702 has found it constitutional.” But this, too, is a distortion. Even the secretive FISA Court—which has been reluctant to impose strict safeguards despite persistent violations—has twice found Section 702 surveillance unconstitutional because of intelligence agencies’ invasions of Americans’ privacy. (Once because the FBI’s rampant querying of Americans led to repeated, widespread abuses; and once because the NSA misrepresented its collection of Americans’ communications using Upstream surveillance.)
Meanwhile, in the ordinary federal courts where judges typically hear from both sides, the government has used every available tactic to block full and fair judicial review, often succeeding in getting cases dismissed before reaching the merits of Section 702’s constitutionality. In civil cases challenging Section 702 surveillance of Americans, the government has consistently—and aggressively—used the standing and state secrets doctrines to block courts from ruling on whether this warrantless spying complies with the Constitution. Most recently, in Wikimedia Foundation v. NSA, the government invoked state secrets to obtain dismissal of a Section 702 challenge, notwithstanding a wealth of public evidence showing that Wikimedia and its users were subject to this surveillance. The government used similar tactics to block judicial review in Jewel v. NSA and Amnesty International v. Clapper.
In the criminal context, the government has also erected multiple barriers to meaningful court review by (1) repeatedly failing to provide notice of Section 702 surveillance to people charged with crimes; and (2) using claims of secrecy to prevent defense attorneys from obtaining basic, essential facts about how the surveillance was used in a given case.
Because of this, the lawfulness of Section 702 surveillance has hardly been resolved, especially when it comes to backdoor searches of Americans. Instead, officials have repeatedly invoked secrecy to prevent courts from addressing the use of queries to deliberately access the private communications of Americans.
The result of this uneven playing field: in the handful of criminal cases where the government eventually provided notice, courts have approved the initial “collection” of Americans’ communications under Section 702 in the course of targeting foreigners. But none of these cases has resolved a separate and central constitutional question—the lawfulness of subsequent backdoor searches that specifically target Americans. The government has repeatedly sought to dodge this question by making conclusory, one-sided claims that its evidence was not “derived from” backdoor searches, while refusing to disclose even basic information to security-cleared counsel, which would permit fair, adversarial litigation. Despite conducting millions of backdoor searches over the past fifteen years, the government has never informed a single defendant that it used a backdoor search to develop its evidence in a criminal prosecution.
In one important decision, however, the Second Circuit rejected the government’s nothing-to-see-here claim, and broke significant new ground on backdoor searches in the process. In United States v. Hasbajrami, the court of appeals refused to accept the government’s claims at face value and held that querying an American’s communications is “an independent Fourth Amendment event” from the initial Section 702 collection targeting foreigners. That means searches directed at Americans must be separately justified under the Constitution. Based on its holding, the Second Circuit sent the case back to the district court for further factual and legal development, where it is pending today.
In short, the existing judicial rulings involving Section 702 do not show that the courts have uniformly blessed this surveillance, as officials often claim. To the contrary, the government has done its best to insulate the most controversial aspects of this program from judicial review in the ordinary federal courts. This, too, is an area for vital reforms—to ensure adequate disclosure of surveillance in criminal cases and prevent misuse of the state secrets privilege to dismiss legal challenges.
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Section 702 permits the mass warrantless surveillance of Americans and, over the past fifteen years, U.S. intelligence agencies have increasingly used the law to do just that. When Section 702 was enacted, then-Senator Biden acknowledged this danger, stating that the law “would be a breathtaking and unconstitutional expansion of the President’s powers and it is wholly unnecessary to address the problems the administration has identified.” President Biden was right then; his administration is wrong now. Congress should fundamentally reform Section 702 to require a warrant for searches of Americans’ communications.
Editor’s Note: For a diversity of views on Section 702 reauthorization, see our ongoing coverage.