Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for renewal. The section authorizes the government to collect the communications of foreigners abroad, even if those foreigners are talking about or to Americans. The government can query, using identifiers of Americans, a massive database of private messages gleaned from American companies, such as Google or AT&T, without a court-approved search warrant. The FBI established some limits on such warrantless searches of Americans’ data. Still, FBI officials have, numerous times, violated those internal guidelines to query—despite a lack of adequate justification or too broad a search criterion—identifiers of Black Lives Matter protesters, participants in the January 6 insurrection, and even a lawmaker. In response to the exposure of such shenanigans, the FBI tightened its procedures in 2021.
Although the Biden administration and national security officials want Congress to reauthorize Section 702, with the internal FBI limits enshrined into law, the FBI abuses have led to bipartisan support in both the Senate and House for further reforms. Even such additional reforms are insufficient. Despite Section 702, any domestic spying is a blatant violation of the Constitution’s Fourth Amendment that prohibits unreasonable searches and seizures against people, citizens and non-citizens alike, by the U.S. government—that is, unless a court-approved search warrant is issued. Thus, the only adequate remedy to restore the sanctity of the Fourth Amendment is to let Section 702 expire.
During the long period of national hysteria after the admittedly horrific 9/11 attacks, it was discovered that the George W. Bush administration had unilaterally and illegally ordered, under the clandestine Stellar Wind program, spying on Americans in a desperate attempt to do something to thwart future terrorism. This revelation caused a furor in the media and Congress. Demonstrating that such public handwringing was mere virtue signaling, Congress, in 2008, eventually codified blatantly unconstitutional warrantless domestic surveillance under Section 702 of the FISA law. Yet the national security establishment now uses the section to conduct warrantless surveillance on Americans in not only terrorism cases but also in those against spies, hackers, and networks involved in the proliferation of weapons of mass destruction.
The Biden administration, the national security community, and the intelligence committee chairmen in both chambers of Congress all oppose the imposition of a requirement for a search warrant to query Americans’ data. A Biden administration assistant attorney general for national security has pointed to the increased dangers abroad—two wars and threats from Iran and China—to allege that any requirement for such search warrants would severely damage U.S. national security.
The bipartisan reformers are having none of it and correctly argue that Section 702 is merely a backdoor loophole for the federal government to violate Americans’ privacy rights under the Fourth Amendment. The simple problem that the Biden administration and national security community have is that the Fourth Amendment, prohibiting unreasonable government searches and seizures, has no national security exemption from its requirement that “no Warrants shall issue, but upon probable cause [that a crime has been committed], supported by Oath or affirmation [by a government official].” Therefore, before querying Americans’ data, even for the aforementioned specific purposes, officials can still work to ensure national security by showing probable cause that the individuals to be searched are committing a crime and getting a warrant from a special FISA court, which has special secret proceedings.
Despite the histrionics of the Biden administration and other national security officials, such warrants were required from the secret court, without exception, from the initiation of the FISA law in 1978, in response to illegal government surveillance of Americans during the Vietnam War, until the 9/11 attacks. The Constitution’s framers believed that having a judicial branch check on surveillance and searches would prevent executive branch tyranny, one of the primary purposes of their deliberate system of checks and balances. They also realized that men might try to enhance their own power by excessively hyping external security bugaboos to threaten unique American liberties, the perseveration of which is the core of the American political system. The fact that no national security exemption exists in the Fourth Amendment indicates that maintaining American liberty was even more important to the framers than combatting alleged ephemeral foreign threats. Benjamin Franklin’s adage does apply here: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Thus, Section 702 has always been unconstitutional; Congress should let it lapse, restoring the requirement to seek court-approved warrants before the government searches Americans’ data. In other words, Congress really can do something by simply doing nothing.
Ivan R. Eland is a Senior Fellow at the Independent Institute and Director of the Independent Institute’s Center on Peace & Liberty. He is the author of War and the Rogue Presidency. He tweets at @Ivan_Eland.