Before searching for an American’s private communications, get a warrant.


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Before searching for an American's private communications, get a warrant.



Section 702 of the Foreign Intelligence Surveillance Act (FISA) -- which allows the government to engage in warrantless surveillance targeted at non-U.S. persons abroad -- is set to expire at the end of 2023, unless Congress passes new legislation.


The Center for Democracy & Technology (CDT) has long been critical of Section 702, which lacks necessary safeguards and significantly harms the privacy of individuals across the world, as well as those in the United States whose communications often get swept up in this warrantless surveillance. With a
series of recommended reforms ([link removed]), it is possible to better protect civil rights and civil liberties and guard against abuse of the law's powerful authority to conduct warrantless surveillance, while enabling law enforcement officials to live up to their critical public safety responsibilities.



While the goal of Section 702 was to facilitate monitoring of foreign agents, terrorists, and intelligence operatives abroad, its lax rules open the door to abuse through mass targeting of innocent people who are in no way suspected of wrongdoing or connected to malicious activities by foreign powers. There are two clear paths of action for Congress to
narrow permissible 702 targets ([link removed]). First, it could require that, whenever targets are designated for the purpose of collecting information related to foreign affairs, there must be reasonable suspicion that those targets are agents of a foreign power. Alternatively, Congress could establish a reasonably narrowed set of purposes for which the government can designate FISA Section 702 targets, similar to those found in last fall's
Executive Order ([link removed])
on signals intelligence. If the executive believes it can meet operational needs while voluntarily adhering to these limits, it should have no objection to them being codified into statute.

Another key area of reform is to close
the backdoor search loophole ([link removed]), which enables the government to co-opt Section 702's warrantless surveillance authority to deliberately seek out Americans' communications for
generalized domestic surveillance ([link removed]). The government can -- and frequently does -- query databases of FISA Section 702-acquired communications to deliberately seek out these Americans' conversations absent judicial oversight or suspicion of wrongdoing. The way to prevent abuse of backdoor searches and improper treatment of Americans' private communications is to have a strict and consistent warrant rule. Congress should not reauthorize FISA Section 702 without establishing a rule that all U.S. person queries of Section 702-acquired data must be predicated on probable cause (either that the query will return evidence of criminal wrongdoing or that the applicable person is an agent of a foreign power) and approved by the FISA Court.


Unfortunately, the concerns outlined above are not theoretical. This past May,
disclosures confirmed that the FBI ([link removed]), which has already been under scrutiny for a litany of past compliance violations involving Section 702, engaged in improper searches for Americans' communications targeted at political activities and actors, including 19,000 donors to a congressional campaign, as well as over 100 civil rights protesters demonstrating in 2020 after police killed George Floyd. This shocking example of "
% link:[link removed] name="defensive searches" content="defensive searches" %]" should end the discussion of whether any type of "defensive search" exception is safe or acceptable.



([link removed])


READ ([link removed])

New FISA Court Opinion Reveals More of the Same: Systemic Misuse of FISA 702


([link removed])


READ ([link removed])

CDT Leads Coalition Letter & Submits Statement Urging Surveillance Reforms As Senate Judiciary Meets on Section 702


([link removed])


READ ([link removed])

FISA Section 702 Issue Brief: FBI's Misuse of FISA 702 in Past Indicates That Its Procedural Reforms Will Not Break Pattern of Misuse in the Future


([link removed])


READ ([link removed])

There Is No "Defensive Search" Exception to the Fourth Amendment: Why a Consistent Warrant Rule Is Necessary to Fix FISA Section 702


([link removed])


READ ([link removed])

CDT Submitted Comments to PCLOB on FISA Section 702 Reform



Section 702 has a tremendous impact on the privacy and civil liberties of individuals both in the United States and across the world. With the expiration of this authority approaching, we expect Congress and the public will diligently examine potential reforms in the coming months.



CDT is working hard to ensure that your rights are at the center of discussions on government surveillance. Partners like you have been indispensable in this work. If you are not yet engaged and want to learn more, please reply to this email to join the conversation. You can help advance human rights and democratic values in the digital age.


LEARN MORE ([link removed])




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