Congress should not reauthorize warrantless surveillance of Americans

The Biden administration is urging Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which will expire this year unless reenacted. 

The law allows the federal government to acquire, without a warrant, the electronic communications of foreign intelligence targets overseas. But federal agencies have also been using it to access Americans’ private communications without warrants, snaring Americans in a web of scrutiny without their knowledge. 

A recently declassified court opinion blasts the FBI for its “pattern of conducting broad, suspicionless queries” of information about Americans gathered under Section 702. Congress should not reauthorize the law without adding better protections for Americans who are caught up in this surveillance. 

Section 702 has rightly become controversial, largely due to the practice of “backdoor searches.” The National Security Agency obtains communications without a warrant based on a pledge that it is targeting only foreigners outside the United States. But the surveillance inevitably sweeps in Americans’ communications as well. 

And the FISA Court — a special court that oversees FISA surveillance and is typically highly deferential to the government — has approved rules that allow the FBI and other agencies to conduct searches of Section 702 data for the purpose of finding Americans’ communications (the FBI refers to these searches as “U.S. person queries”).

FBI agents can perform these searches any time they believe a search is reasonably likely to return foreign intelligence or evidence of a crime. The FBI takes full advantage of this low standard. Last year, it conducted 200,000 U.S. person queries — more than 500 warrantless searches for Americans’ communications every day. 

Mass warrantless searches for the purpose of accessing Americans’ most personal information violate core American values and principles enshrined in the Constitution. Although the FISA Court has approved this practice, other judges to consider the issue are divided, with some raising concerns that the practice could violate Fourth Amendment protections against unreasonable searches and seizures.

The Biden administration and other defenders of Section 702 have tried to focus the reauthorization debate on the value of the foreign intelligence obtained, rather than on the way the law has been repurposed to spy on Americans. 

This argument glosses over the key issue. Critics of the law — the present author included — are not disputing the government’s claims that Section 702 produces useful intelligence about malign foreign actors. (Indeed, because the government classifies so much information about how it implements Section 702, no member of the American public could dispute those claims.) The more relevant question is whether the government’s foreign intelligence surveillance powers include sufficient protections for Americans’ rights.

Despite the low standard for when it can conduct U.S. person queries, the FBI frequently oversteps. The FISA Court issued opinions in 2018, 2019, 2020 and 2022 decrying FBI agents’ “persistent and widespread” violations of such safeguards as do exist. These violations include warrantless searches for information about a local political party, current and former federal government officials, journalists, and political commentators and even a sitting member of Congress. FBI agents also ran searches based on a witness’s report that two men “of Middle Eastern descent” were loading cleaning supplies into a truck. 

A declassified ruling released just last Friday adds to this list, recounting 133 improper queries targeted at racial justice protesters, thousands of baseless queries relating to the Jan. 6 attack on the U.S. Capitol and over 19,000 queries aimed at people who had contributed to a particular political candidate.

Despite recent changes to internal FBI policy, violations remain far too common. A recently released internal FBI audit found that agents violate FISA standards in four percent of queries. That may seem like a low number, but a four percent noncompliance rate means that 8,000 warrantless FBI searches last year alone did not meet even the FISA Court’s minimal standards. Moreover, there are questions about the report’s methodology — for one thing, agents were asked to recreate the reasons for their queries long after the fact.

The FBI has demonstrated that it cannot be trusted to regulate itself — and even the most rigorous self-policing by a government agency can never substitute for a warrant issued by a court. Congress should not reauthorize Section 702 without enacting significant reforms — most importantly, a requirement that the government obtains a warrant prior to searching for Americans’ communications that are obtained without a warrant under foreign intelligence surveillance authorities. The Fourth Amendment demands no less.

Noah Chauvin (@NoahChauvin) is a counsel in the Brennan Center for Justice’s Liberty & National Security Program.  Previously, he was an intelligence counsel in the Office of the General Counsel of the U.S. Department of Homeland Security.