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Abstract

Imagine a United States without the Fourth Amendment. The People have no protection against warrantless searches of their homes, belongings, or communications, and the government may invade the privacy of whomever or whatever at its pleasure. This is the exact situation the Founding Fathers designed the Fourth Amendment to protect against. Imagine instead a United States with the Fourth Amendment. The People have protection against warrantless searches of their homes, belongings, and communications, and the government may not invade the privacy of whomever or whatever at its pleasure. But then imagine that these protections are disrupted—jeopardized. Congress passes an act allowing the government to conduct warrantless searches in the name of national security. Some statutory limitations are imposed on that vast power, but they are easy to offend or even outright abuse. The government does both: It inadvertently and incidentally crosses the statutory line, and it overtly tramples across it. The government, in misguided pursuit of the interests of national security—or in the guise of it—circumvents the Fourth Amendment to search Americans’ private lives. This is the current state of FISA 702 in the United States. Without significant statutory reform, Americans’ Fourth Amendment rights are as good as nonexistent.

Enacted partly in response to the devastating terrorist attacks of September 11, 2001, Section 702 of the Foreign Intelligence Surveillance Act was designed to provide intelligence community agencies with the surveillance tools they need to ensure national security. The Intelligence Community has used FISA 702 to do just that: FISA 702 has been employed to prevent terrorist attacks, thwart disastrous hacks by foreign actors, curb the trafficking of deadly illicit drugs, and more. But FISA 702 has a problem. It is easy to abuse, and it has been abused at alarming rates by agencies such as the Federal Bureau of Investigation.

Intelligence agencies such as the FBI have the power to use FISA 702 to surveil non-U.S.-persons, located outside the United States, so long as the surveillance is reasonably likely to produce some foreign intelligence information. However, in the course of that surveillance, Americans’ data is often swept up and collected by the FBI, and analysts can later enter the FBI’s FISA 702 database, run a U.S.-person query, and obtain information about those U.S.-persons without a warrant. This may occur incidentally, inadvertently, or overtly. Absent FISA 702, the collection of such information requires a warrant under the Fourth Amendment. The Fourth Amendment is being circumvented through this back-door search loophole.

With FISA 702 reauthorized for two years in April of 2024, after its temporary reauthorization in December of 2023, reform of the abused surveillance tool has been a focus of congressional concern. Congress is concerned with how FISA 702 has been wrongly used against American citizens but is faced with the challenging fact that FISA 702 is still an invaluable and indispensable national security tool. This difficult balancing act between ensuring the nation’s security and protecting Americans’ cherished Fourth Amendment rights has resulted in FISA 702 seeing inadequate reform since its enactment. The courts continue to uphold its constitutional validity because of internal reforms made by the FBI and the government’s compelling interest in protecting the nation. Yet these internal reforms have not been proven fruitful, and internal policies are far too easy to break. While the government’s compelling interest in promoting national security is undeniable, that does not mean that Americans’ Fourth Amendment rights no longer deserve protection.

In order to preserve the value of FISA 702 as a national security tool, while simultaneously protecting Americans’ Fourth Amendment rights, Congress must make a streamlined warrant process a statutory requirement. Intelligence community agencies should be required to obtain a warrant from the Foreign Intelligence Surveillance Court before they can conduct queries that reveal U.S.-person information. Since the typical warrant process would be too timely, the FISA 702 warrant process should be expedited, with warrants issued or denied within twenty-four to forty-eight hours. If a faster search is necessary, it may be conducted prior to receiving a warrant, but punitive measures will be taken if the tool is abused in order to provide a deterrent effect. Such a requirement would balance the government’s compelling interest with the compelling interest of Americans in preserving their Fourth Amendment rights. It is through significant statutory reform alone that FISA 702 should continue to be a tool at the government’s ready disposal.

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