Congress should soon be voting on a measure to rein in warrantless searches of Americans’ communications acquired under Section 702 of the Foreign Intelligence Surveillance Act (FISA). In a significant win for surveillance reform proponents, the House Rules Committee agreed to allow a vote on an amendment to the Justice Department’s FY 2022 appropriations bill that would prohibit funding for the government to conduct “backdoor searches” of Section 702 data seeking information regarding a U.S. person (U.S. citizen or legal permanent resident). This bipartisan amendment has been co-sponsored by U.S. Reps. Zoe Lofgren (D-CA), Thomas Massie (R-KY), Pramila Jayapal (D-WA), Warren Davidson (R-OH), Anna Eshoo (D-CA), and Victoria Spartz (R-IN).
CDT has long supported an end to such searches under Section 702, and this week, we joined with over two dozen other civil liberties groups in a letter urging Congress to pass this amendment. Congress should take this opportunity to finally prohibit this privacy-invasive and unconstitutional practice.
Section 702 of FISA authorizes the government to target non-U.S. persons who are located outside the United States in order to collect the content of their communications, such as emails and phone calls. The secret FISA Court must approve certifications that specify certain categories of information that the government may seek under Section 702, such as for counterterrorism, as well as the overarching targeting procedures and minimization and querying procedures for operation of the program.
However, the FISA Court does not play any role in reviewing or approving the selection of particular 702 targets, and the government is not required to limit its targets to suspected terrorists or other wrongdoers. Rather, it may target non-U.S. persons when personnel “reasonably assess” that the target is likely to communicate foreign intelligence information related to one of the approved purposes for Section 702 collection.
Importantly, the government collects Americans’ communications through this program when the Americans are on the other end of a communication with a target. The government refers to this as “incidental collection,” although it is neither unanticipated nor insignificant in quantity. Moreover, in many cases unsuspecting Americans may be in communication with Section 702 targets because the targets need not be tied to any wrongdoing.
Current law permits the government in most cases to search through the communications collected under Section 702 to seek information about a particular U.S. person without obtaining a warrant or any other type of court approval. The government calls this practice conducting a “U.S. person query,” since they are searching through or “querying” collected 702 data using an identifier associated with a particular U.S. person.
The NSA’s querying procedures permit the agency to conduct such queries provided that personnel have submitted a statement of facts showing that use of the U.S. person identifier as a selection term is “reasonably likely to retrieve foreign intelligence information,” and the NSA’s General Counsel has approved the use of that U.S. person identifier for queries. Many civil liberties advocates appropriately refer to this practice as conducting a backdoor search, because no warrant or other judicial approval is required either at the “front end” when the communications are collected, or prior to searching through collected information using the U.S. person identifier. Although Congress added a requirement in 2018 for the FBI to seek court approval in a small subset of cases, this rule does not cover the vast majority of circumstances in which the FBI actually conducts U.S. person queries at the assessment stage.
Concerningly, the intelligence agencies frequently conduct these U.S. person queries or backdoor searches. The most recent transparency report published by the Office of the Director of National Intelligence (ODNI) shows that the NSA conducted such searches for the contents of communications for over 7,000 approved U.S. person terms in calendar year 2020, and for over 9,000 such terms in both 2018 and 2019. As the ODNI transparency report explains, current law only requires the FBI to report statistics on queries not designed to return foreign intelligence information, but this has led to significant underreporting of FBI U.S. person queries. However, we know that it has long been a “routine” practice for the FBI to run such backdoor searches and the most recently released FISA Court opinion reauthorizing the Section 702 program reveals numerous instances in which the FBI conducted queries using U.S. person terms in violation of current procedures.
Given the lack of any probable cause showing or any kind of prior individualized judicial approval, these backdoor searches violate the constitution. U.S. persons are protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures, and when the government combs through collected Section 702 data seeking information regarding a particular American, this amounts to a search under the Fourth Amendment.
Such searches require a warrant. Alternatively, even if one accepts the government’s position that there is a foreign intelligence exception to the Fourth Amendment’s warrant requirement – a question not yet decided by the Supreme Court – some type of prior judicial review should nonetheless be required. The U.S. Court of Appeals for the Second Circuit has held that U.S. person queries must comply with the reasonableness standard of the Fourth Amendment, noting that “[t]reating querying as a Fourth Amendment event and requiring the query itself to be reasonable provides a backstop to protect the privacy interests of United States persons and ensure that they are not being improperly targeted.”
The Second Circuit sent the case back to the district court for further evaluation, and meanwhile, the U.S. Court of Appeals for the Tenth Circuit is considering another case challenging the constitutionality of warrantless U.S. person queries. Both of these cases provide the opportunity for courts to strike down the practice of backdoor searches under Section 702. But Congress also has the power to end these invasions of Americans’ privacy.
When Congress reauthorized the Section 702 program in January 2018, it failed to enact any meaningful reforms and missed the opportunity to end the unconstitutional practice of backdoor searches. The statute authorizing the program is next set to expire in December 2023. But Congress need not wait any longer. The amendment to end backdoor searches is being offered to the Justice Department’s FY 2022 appropriations bill, and voting in the House could happen as early as this week. Congress should pass this measure now to finally end warrantless searches of Americans’ communications.