Section 702 Created a Backdoor Search Loophole

Unless it is renewed, Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire on December thirty first. In a dramatic departure from past reauthorizations, which were mostly routine rubberstamps, Section 702 of the FISA is facing intense scrutiny this year. Recent revelations suggest that Section 702 is being used as a powerful domestic spying tool extensively utilized by the FBI. A particular area of concern that could be mitigated this time around is the issue of the “backdoor search loophole.”

Section 702 authorizes broad surveillance of foreigners outside the United States. It allows the U.S. government to surveil individuals abroad without warrants or probable cause, compelling American telecom companies to cooperate in their efforts. However, this has inevitably led to large volumes of Americans’ communications being swept up in the process. Americans talking on the phone to a relative in another country, for example, could be under the watchful gaze of the American government. 

However, the collection of American communications is not always incidental. Rather, intelligence agencies can search Section 702 data for Americans’ communications to circumvent the requirement for agencies to obtain a warrant or FISA order, which would normally be needed to comply with the Fourth Amendment. 

As Elizabeth Goitein of the Brennan Center for Justice explains

The FBI routinely performs these “backdoor searches” in ordinary domestic investigations that have nothing to do with national security or foreign intelligence. Until recently, though, the full extent of this practice was unknown. 

... the Office of the Director of National Intelligence (ODNI) included the number of FBI backdoor searches for the first time in its 2022 annual statistical report. The report revealed that the FBI performed up to 3.4 million U.S. person queries of Section 702 data in 2021 alone. ODNI cautioned that this number likely overcounts the number of Americans affected, in part because the FBI might use multiple identifiers for, or run multiple queries on, the same individual. But even if the number is off by an order of magnitude, that still represents nearly 1,000 warrantless searches for Americans’ communications each day.

These abuses, combined with reports that the government generally has problems complying with procedures and guidelines related to Section 702, make it clear that reforms are needed. This period between now and December, when Congress is mulling over reauthorization, would seem to be an opportune time to adopt stricter oversight rules and narrow the scope of permissible surveillance targets.

Though this round of Section 702 reauthorization has seen more lively debate than in the past, many of the political heavy hitters favor reauthorizing 702 as is. In a report by WIRED Magazine, it is rumored that House Speaker Mike Johnson (R-LA 4th District) and Senate Majority Leader Chuck Schumer (D-NY) have had talks to include the reauthorization into a “must pass” defense bill.

The Biden-Harris administration also appears to be in support of reauthorization without amendments. In a White House briefing room statement, advisors to the Biden administration’s Intelligence Advisory Board argue that,

failure to reauthorize Section 702 could be ‘one of the worst intelligence failures of our time.’ We also agree with the Board’s recommendation that Section 702 should be reauthorized without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government and with measures that build on proven reforms to enhance compliance and oversight, among other improvements.

Reforms centered on bolstering privacy protections, enhancing oversight, and fostering transparency, offer a pathway to recalibrate this surveillance authority. The essence of these reforms should lie in safeguarding the constitutional rights of American citizens while ensuring that intelligence tools intended for foreign threats do not become instruments of domestic surveillance. 

Jonathan Hofer is a Research Associate at the Independent Institute. He has written extensively on both California and national public policy issues. He holds a BA in political science from the University of California, Berkeley. His research interests include privacy law, student privacy, local surveillance, and the impact of emerging technologies on civil liberties.
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