FISA’s Warrantless Surveillance Under Section 702 is a Threat to Fourth Amendment Rights

Written by Matthew Johnson.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) grants government agencies the authority to conduct surveillance on Americans without obtaining a warrant. Recently, the U.S. House of Representatives passed a two-year extension of this provision, raising significant concerns among privacy advocates. Although intended to target foreign subjects, Section 702 also permits the surveillance of many Americans’ communications.

Critical reforms aimed at curbing the misuse of this law were rejected, leading to widespread alarm. Privacy advocates argue that the reauthorization of Section 702 includes troubling language, expanding the scope of material that authorities can legally surveil. “One of the things that Congress was ostensibly addressing in the most recent FISA reauthorization was the evolution of digital technology and the rise of cloud computing,” said Luke Hogg, executive director at the Foundation for American Innovation.

By broadening the definition of an “Electronic Communication Service Provider,” the federal government can now compel a wide array of services to provide information. This change means that cloud services, data centers, and other historically exempt services must now assist the government in surveilling foreign citizens.

Expanding Surveillance Powers

Intelligence Chairman Mark Warner spearheaded efforts to prevent the expansive language from being narrowed, although he promised to revisit the issue later in the year. “We are working on it,” Warner stated. “I am absolutely committed to getting that fixed.” He expressed concerns about the House amendment’s broad approach, especially regarding electronic communication service providers.

“The idea that you draw it so broad, and then try to exclude things, well, you’re never going to be able to figure out all the possible exceptions,” Warner added. The extension of Section 702 significantly alters the landscape for electronic communications service providers, obligating more companies to provide the government access to their communications.

As a result, businesses across the U.S. must now comply with requests for access to Wi-Fi routers, phones, and other electronic devices. “Warrantless FISA surveillance is an obvious violation of the Fourth Amendment ban on unreasonable searches,” said Samuel Karnick, a senior fellow at the Heartland Institute, in an interview with Blaze News.

Eroding Fourth Amendment Protections

The Fourth Amendment clearly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Despite this, the Center for Democracy and Technology reported in April that the House’s narrow decision— a 212-212 tie— to renew Section 702 without a warrant requirement is a significant blow to Americans’ civil rights and liberties. This extension grants the CIA, FBI, and NSA the power to access Americans’ private messages without court approval.

A backdoor search loophole has already been exploited by government agencies to monitor the private communications of campaign donors, lawmakers, journalists, and protesters across the country. Nathan Leamer, executive director at the Digital First Project, noted that the “intelligence community has made it clear that they will turn over every stone and look behind every tree to catch the ‘bad guys’ out of fear that terrorists may be using emerging technologies or other communications systems.”

Leamer also pointed out that much of the discussion about FISA occurs behind closed doors, including classified briefings, leaving Americans to trust the government blindly regarding the justification for these surveillance powers.

Contradictions and Future Implications

The American Civil Liberties Union highlighted a contradiction in President Joe Biden’s stance on FISA. Sixteen years ago, then-Senator Biden voted against the FISA Amendments Act, opposing efforts to collect Americans’ international phone calls, emails, text messages, and other digital communications. At the time, Biden argued that Section 702 “would be a breathtaking and unconstitutional expansion of the President’s powers and it is wholly unnecessary to address the problems the administration has identified.”

He further stated his refusal to “give the President unchecked authority to eavesdrop on whomever he wants in exchange for the vague and hollow assurance that he will protect the civil liberties of the American people.” Ironically, his administration now defends the very powers he once opposed.

The Future of Unwarranted Surveillance

The future of unwarranted surveillance remains uncertain, but it appears that human-led spying efforts are becoming obsolete. With the rapid advancement of artificial intelligence technologies, the government could potentially amass vast amounts of personal data under the guise of protecting Americans. AI-powered systems are set to transform data management, and by 2025, it is estimated that over 180 zettabytes of data will exist. This immense volume of information, combined with the rapid evolution of AI, could lead to unprecedented levels of mass surveillance.

The bipartisan concern over Americans’ privacy, highlighted by Edward Snowden’s revelations about the NSA’s surveillance activities, may only intensify with the deployment of advanced AI surveillance tools. In 2023, Snowden expressed cautious optimism about AI, suggesting that while AI could be misused by bad actors, it also holds potential for positive change. “Maybe they could stop spying on the public and start spying for the public,” Snowden said, envisioning a scenario where AI helps protect citizens’ privacy rather than invade it.

Despite this optimism, Hogg warned that Americans who value their privacy “should absolutely be concerned about the expansion of FISA.” He argued that “without transparency reforms and warrant requirements, this expansion of FISA will almost certainly increase the illegal surveillance of American citizens.”

Leamer noted a silver lining: the debate over Section 702 will resurface in two years, offering Congress and the American people another chance to assess and decide the program’s future. The evolution of AI over the next two years could significantly influence the trajectory of surveillance practices in the U.S.

Our Take

The expansion of Section 702 represents a significant threat to Americans’ Fourth Amendment rights. The government’s ability to conduct warrantless surveillance undermines the fundamental principles of privacy and due process. As AI technologies continue to advance, the potential for even more invasive surveillance practices grows. It’s imperative that we demand transparency and accountability from our government to protect our civil liberties. Allowing unchecked surveillance sets a dangerous precedent, eroding trust in our institutions and infringing on our freedoms.

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