Reforming 702: End Warrantless Backdoor Searches

This post is part of a running blog series on Section 702 ahead of its reauthorization deadline in December 2023. In this series, EPIC will dive deeper into Section 702 and the need for significant reform. For the other parts of this series, click here. 

Section 702 of the Foreign Intelligence Surveillance Act (FISA) was added to FISA through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to authorize together “the targeting of non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”[1] Although the targets are non-U.S. persons believed to be outside the United States, National Security Agency (NSA) surveillance conducted under Section 702 nonetheless captures communications of U.S. persons.

The reason U.S. Persons’ communications are so often caught up in foreign intelligence surveillance is because Section 702 1) authorizes FISC to approve a broad surveillance program for a year at a time, 2) does not require FISC to approve specific targets based on probable cause, and 3) grants the authority of target approval to the Attorney General and the Director of National Intelligence. In practice, this means a lot of targets and according to the latest government transparency report, there were over 230,000 targets in 2021.[2] Additionally, targets are not necessarily individuals as the use of the word “persons” in Section 702 would suggest. When the government targets a “person” under Section 702 that could mean not only an individual but “any group, entity, association, corporation, or foreign power.”

Once those communications are acquired by the NSA, other intelligence agencies may search those communications. Because of its domestic law enforcement role, the Federal Bureau of Investigation’s (FBI) querying of Section 702 databases far exceeds that of all other agencies with access—the NSA, the Central Intelligence Agency (CIA), and the National Counterterrorism Center (NCTC)—combined. The alarming scope and nature of the FBI’s warrantless backdoor searches shows that this “foreign intelligence” surveillance tool has increasingly become a tool of domestic surveillance.

What is a Warrantless Backdoor Search?

The surveillance methods used under Section 702 acquire a massive amount of communications data that inevitably sweeps up the communications of U.S Persons. The acquisition of U.S. Persons’ communications under Section 702 surveillance is often referred to as “incidental” collection; however, Section 702 surveillance is carried out in a way that communications from U.S. Persons are expected to be acquired as part of collecting communications from the targets.

A warrantless backdoor search is a search of Americans’ communications “incidentally” collected under Section 702. Traditionally, the Fourth Amendment protects Americans against unreasonable and warrantless searches by domestic law enforcement agencies. Section 702 creates a loophole in the Fourth Amendment that allows the government, most notably the FBI, to keep the communications of Americans “incidentally” collected under Section 702 and search these communications without a warrant approved by a judge—even though these communications did not come from the targets of Section 702 surveillance. Thus, Section 702 has created a backdoor for the FBI to avoid the requirements of the Fourth Amendment and conduct warrantless searches of Americans’ communications.

Because the government understands that Section 702 surveillance implicates Americans’ privacy, it does require that each agency take steps to “minimize” non-foreign intelligence information about Americans.[3] Unfortunately, this requirement does not stop the government from searching through unminimized communications that include the “incidentally” collected communications of an untold number of Americans. The FBI’s minimization procedures, which were revised after the FISC found that they violated the Fourth Amendment and the requirements of FISA, specifically allow the Bureau to search the unminimized information acquired under Section 702.[4] And they can do so to not only find foreign intelligence information but to find evidence of a crime. Although Congress has required that the FBI obtain a court order before searching for U.S. person information in very narrow circumstances, it appears that the FBI has not once sought such an order, even where required. These restrictions do little to alleviate the privacy, civil liberties, and civil rights concerns created by the FBI conducting warrantless backdoor searches of Americans’ communications.

A History of Abuse and Noncompliance

FISA was enacted to regulate electronic surveillance after widespread abuses by intelligence agencies came to light. Section 702 was added to FISA as part of the FISA Amendments Act of 2008, but despite the addition of minimization requirements, it is clear the American people lack the protections necessary to prevent abuse of Section 702 authorities.

Although the number of Americans’ communications caught up in Section 702 surveillance is not known (despite promises by the Intelligence Community to provide an estimate), an estimate of the number of searches by the FBI of Americans’ communications caught up in Section 702 surveillance is known. According to an Office of the Director of National Intelligence 2022 Transparency Report, the FBI conducted up to 3.4 million searches of Americans’ communications in 2021 alone.[5]

While compliance and abuse of the data collected under Section 702 has historically been an issue across the board, the FBI has a particularly bad record. This is evidenced by the comprehensive list of compliance violations and abuses under Section 702 from 2008-2017. A timeline of some of the most egregious violations highlights how the FBI conducted thousands of unlawful searches and tried to avoid a Congressional requirement to count the number of searches the Bureau did of U.S. Persons’ communications.

A recently declassified report shows that the FBI’s long list of disturbing violations has continued in recent years, despite promises of reform. The FBI searched unminimized Section 702 data using only the name of a U.S. congressman.[6] Similarly, the FBI searched the name of a “local political party” just to see if they had a link to foreign intelligence.[7] The FBI also searched the names of “business, religious, civic, and community leaders” who applied for the FBI’s Citizens Academy, and conducted a significant number of searches relating to ordinary criminal investigations.[8] A 2019 FISC opinion showed a similar pattern of disturbing searches of Section 702-acquired data. The opinion revealed that the FBI searched “college students participating in a ‘Collegiate Academy’” as well as searching “individuals who had visited the FBI office (e.g., for maintenance).”[9] The government has blamed these abuses to misunderstandings of the FBI’s systems and querying procedures.

It is clear the current structure of the Section 702 authority does not provide the protections necessary to prevent abuses and that warrantless backdoor searches are a run around the Fourth Amendment of the Constitution. Congress must eliminate the warrantless backdoor search, implement stronger minimization requirements to narrow the amount of Americans’ communication captured and retained under Section 702, and require a warrant for any search of Americans’ information.

---

[1] 50 U.S.C. § 1881a(a).

[2] Office of the Director of National Intelligence, Annual Statistical Transparency Report Regarding the Intelligence Community’s Use of National Security Surveillance Authorities 4 (April 2022), https://www.dni.gov/files/CLPT/documents/2022_ASTR_for_CY2020_FINAL.pdf.

[3] 50 U.S.C. § 1881a(e).

[4] See, e.g., Federal Bureau of Investigation, Querying Procedures Used by the Federal Bureau of Investigation in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Act of 1978, as Amended 3-6 (Oct. 19, 2020), https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_Cert_FBI%20Querying%20Procedures_10.19.2020.pdf; See also Priv. & Civ. Liberties Oversight Bd., Report on the Surveillance Program Pursuant to Section 702 of the Foreign Intelligence Act 55 (July 2, 2014), https://documents.pclob.gov/prod/Documents/OversightReport/ba65702c-3541-4125-a67d-92a7f974fc4c/702-Report-2%20-%20Complete%20-%20Nov%2014%202022%201548.pdf.

[5] Office of the Director of National Intelligence, Annual Statistical Transparency Report Regarding the Intelligence Community’s Use of National Security Surveillance Authorities 4 (April 2022), https://www.dni.gov/files/CLPT/documents/2022_ASTR_for_CY2020_FINAL.pdf.

[6] Department of Justice and Office of the Director of National Intelligence, Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of National Intelligence 58 (December 2021), https://www.intelligence.gov/assets/documents/702%20Documents/declassified/24th-Joint-Assessment-of-FISA-702-Compliance.pdf.

[7] Id.

[8] Mem. Op. [Redacted], No. [redacted], at 39-40 (FISC Nov. 18, 2020), https://repository.library.georgetown.edu/bitstream/handle/10822/1061209/gid_c_00289.pdf?sequence=1&isAllowed=y.

[9] Mem. Op, [Redacted], No. [redacted], at 66 (FISC Dec. 6, 2019), https://www.intelligence.gov/assets/documents/702%20Documents/declassified/2019_702_Cert_FISC_Opinion_06Dec19_OCR.pdf.