Section 702 authorizes warrantless surveillance, and therefore may only be targeted at non-U.S. persons outside the United States. But the surveillance inevitably sweeps in enormous volumes of Americans’ communications, because Americans communicate with foreigners. If the government’s intent were to eavesdrop on these Americans, it would have to get either a warrant (in a criminal investigation) or a FISA Title I order (in a foreign intelligence investigation). Accordingly, to prevent the government from using Section 702 as an end-run around the Fourth Amendment, Congress directed the government to “minimize” the retention and use of these “incidentally” collected communications of Americans.
Instead of following this directive, the FBI, CIA, and NSA routinely search through Section 702 data for the express purpose of finding and reviewing Americans’ phone calls, emails, and text messages. The FBI conducted 200,000 of these “backdoor searches” in 2022 alone. An authority that is supposed to be targeted only at foreigners has thus become a powerful domestic spying tool.
The House will soon vote on a bill, the “Reforming Intelligence and Securing America Act” (RISAA), to reauthorize Section 702. But RISAA is a reform bill in name only. Fortunately, members of the House Judiciary Committee will offer an amendment that would close the backdoor search loophole by requiring the government to obtain a warrant before searching Section 702-acquired data for Americans’ communications. The two-pager below details why RISAA fails to solve the backdoor search problem and why a warrant requirement is the only way to safeguard Americans’ rights and end abuses.
BCJ Two-pager on Warrant Amendment 4–10–24 by The Brennan Center for Justice on Scribd
