There Is No “Defensive Search” Exception to the Fourth Amendment: Why a Consistent Warrant Rule Is Necessary to Fix FISA Section 702
The FBI is facing scrutiny regarding its use of a controversial provision of the Foreign Intelligence Surveillance Act (FISA) after they queried for communications of and about a Member of Congress without a warrant. The Bureau is defending its actions and arguing it should be able to conduct warrantless “defensive searches” that attempt to root out foreign influence or other nefarious actions targeting the person being queried. That’s an audacious demand because defensive surveillance is precisely the excuse the government has used to justify some of its most egregious political spying over the past 60 years.
Right now, Section 702 of FISA lets the government engage in warrantless surveillance of foreigners abroad, including all the communications they have with Americans. The FBI goes to that stockpile of private conversations and deliberately seeks out Americans’ emails and text messages, bypassing the Fourth Amendment’s warrant requirement entirely. After years of compliance violations and abuse, Congress may be poised to close this backdoor search loophole.
But now the FBI is pushing for a huge exception, arguing it should be allowed to keep the current warrantless system for “defensive” searches, such as the recently revealed case where they queried communications of and about U.S. Rep. Darin LaHood because they believed he was the target of foreign espionage and influence operations.
But history is filled with chilling examples of how easily the notion of conducting defensive surveillance to protect Americans from foreign influence can be a pretense for politically motivated surveillance abuse. For example, J. Edgar Hoover authorized the monitoring of Dr. Martin Luther King Jr. ostensibly to defend against alleged communist influence efforts aimed at King and other civil rights leaders. In reality, it was motivated by Hoover’s racism and hatred of the civil rights movement.
Detecting and defending against purported foreign influence and subversion was a frequent excuse for monitoring political dissidents—such as the antiwar movement, Black activists, students, and other left-leaning groups—throughout the 1960s and 70s for the abusive COINTELPRO surveillance system. The FBI even described the notion of defensive surveillance as something that “offers us a fertile field to develop valuable intelligence” on leftist political groups despite a lack of evidence of actual foreign danger.
Justifying spying on vulnerable communities and dissidents as a defensive measure to protect against foreign actors has continued into the 21st century. After the September 11 attacks, the New York Police Department, with federal support, engaged in mass surveillance of Muslim communities. They justified monitoring mosques, community centers, student groups, and the daily lives of average Americans—actions with serious harms—as necessary to guard against influence and infiltration by foreign actors like al Qaeda. Even more recently, the FBI and DHS have raised the idea of foreign influence as a basis for monitoring Black Lives Matter activists. In 2020, then President Donald Trump and Attorney General Bill pushed the notion that potential foreign subversion through “Antifa” justified broad surveillance and police action against protesters.
These examples also show the dangers of a split warrant standard for “sensitive queries,” as Privacy and Civil Liberties Board Member Beth Williams proposed at a Congressional hearing last week. Her proposal would keep warrantless queries as a general practice but add heightened protections for “certain queries, such as those involving elected officials, members of the media, and religious figures.” The types of surveillance abuse we’ve seen from the 1960s to the past decade are replete with examples of the government targeting individuals who do not fall into any of these categories, and are simply normal people. Past compliance reports have clearly demonstrated how problematic US person queries can target such a broad range of individuals—relatives of FBI personnel, crime victims, political commentators, students, law enforcement sources, and business leaders—that no such “sensitive queries” rule could shield all those in need of protection.
The decades-long pattern shows that a blank check for warrantless “defensive” searches of Americans’ communications collected pursuant to Section 702 could be abused for political or other purposes. To be sure, there are certain to be many genuine situations where the FBI and other intelligence agencies want to investigate and root out foreign influence efforts or other nefarious actions by foreign actors targeting Americans. The government should be able to pursue those investigations through its broad arsenal of lawful investigative tools, including appropriately predicated and judicially authorized searches of communications.
But there’s a reason the Fourth Amendment does not prohibit “unreasonable offensive search and seizures”–no matter what the government’s motive is or claims to be, we need a strong and consistent shield to protect our citizens and our democracy. Before searching for an American’s private communications, get a warrant.
