The Fourth Amendment prohibits unreasonable searches, which typically means that the government has to get a warrant if it wants to search your home or read your emails. But under Section 702, there’s a glaring loophole.
Section 702 is the surveillance authority enacted as part of the FISA Amendments Act in 2008 and set to expire at the end of this year.
In theory, this provision of the Foreign Intelligence Surveillance (FISA) Act is just that: aimed at collecting foreign intelligence, possessed by foreigners who the Supreme Court has said are outside the scope of the Fourth Amendment’s protections.
But in reality, Section 702 sweeps in millions of Americans’ communications, including through “downstream” surveillance, or the intelligence agencies’ collection of communications directly from the companies that Internet users rely on to communicate, including Google, Facebook, and Yahoo.
Once those communications have been collected through downstream surveillance, they’re put into databases that are routinely searched by the FBI when starting—or even before officially starting—investigations into domestic crimes that may ultimately have nothing to do with foreign intelligence issues. And the FBI doesn’t need a warrant to do those searches. (Since April, when it stopped “about collection”, the government is now allowed to conduct backdoor searches on communications collected as part of its “upstream” collection from the Internet backbone as well.)
Thanks to a foreign intelligence surveillance authority, domestic law enforcement officials can, without a warrant, access Americans’ communications that they would otherwise need a warrant to access. That’s what we, in the civil liberties community, call the “backdoor search” loophole in Section 702.
Luckily, lawmakers have realized what a problem this backdoor search loophole is. In 2014 and 2015, the House of Representatives voted as part of a government funding bill to close this loophole and require a warrant for searches of Americans’ communications. Neither vote resulted in a change to the law, but it shows that there has been clear and overwhelming bipartisan support for applying our fundamental privacy protections to Section 702 surveillance.
Now more than ever, we have to ensure that that clear and overwhelming bipartisan support remains. With Section 702 set to expire at the end of the year, lawmakers need to hear from their constituents that it’s long past time to close this loophole in our fundamental privacy protection.
Contact your representatives in Congress and tell them to rein in the warrantless collection and searches of innocent Americans’ communications under Section 702.