The latest evidence that Section 702 of the Foreign Surveillance Intelligence Act (FISA) must be ended or drastically reformed came last month in the form of a newly unsealed order from the Foreign Intelligence Surveillance Court (FISC) detailing massive violations of Americans’ privacy by the FBI.
The FISC order is replete with problems. It describes the government’s repeated, widespread violations—over a seven-year period—of procedures for searching its databases of internet communications involving Americans, all without a warrant. These searches included especially sensitive people and groups, including donors to a political campaign. And it shows the FISC giving the FBI all-but-endless do-overs, each time proclaiming that the executive branch has made “promising” steps toward compliance with procedures that are largely left up to government attorneys to design.
Perhaps most shocking, however, is the court’s analysis of how the Fourth Amendment should apply to the FBI’s “backdoor searches” of Americans’ communications. These searches occur when the FBI queries Section 702 data that was ostensibly collected for foreign intelligence purposes without a warrant but includes a person on U.S. soil in the communication.
Although the court acknowledged that the volume of Americans’ private communications collected using Section 702 is “substantial in the aggregate,” and that the FBI routinely searches these communications without a warrant for routine matters, it held that the government’s oft-broken safeguards are consistent with the Fourth Amendment and “adequately guard against error and abuse.” When EFF writes that Section 702 and similar programs have created a “broad national security exception to the Constitution,” this is what we mean.
As long as Section 702 has been debated, it
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