Lawmakers pledge bipartisan reforms to secretive surveillance power.

The Law That’s Gone Too Far: Warrantless Searches of U.S. Citizens’ Data

The law authorizing warrantless searches of data on U.S. citizens by the federal government has been so consistently abused that it must be either thoroughly revised or allowed to expire this year, surveillance and privacy advocates say.

“A law designed to provide tools to collect foreign intelligence and prevent terrorist attacks has been warped into a domestic spy tool that has been used millions of times over the past three years to target Americans,” said Chair Andy Biggs (R-Ariz.) said at a July 14 hearing of the House Judiciary Subcommittee on Crime and Federal Government Surveillance.

The hearing examined whether the law—Section 702 of the Federal Intelligence Surveillance Act of 1978 (FISA)—should be revised to prevent future abuses or allowed to sunset.

Witnesses testifying before the subcommittee and the members themselves appeared unanimous in thinking that Congress must take some action on Section 702 to protect the privacy of U.S. citizens.

FISA prescribes procedures for the collection of information by the federal government on U.S. soil.

After the 9/11 attacks, the law was amended through the Patriot Act to guard against the threat of terrorism in the digital age. It was later amended in response to the 2005 revelation of the Stellar Wind operation, a domestic surveillance operation.

Those amendments established a Federal Intelligence Surveillance Court in 2007, and the addition of Section 702 in 2008 to authorize targeted electronic surveillance of overseas subjects.

That includes the collection of phone calls, text messages, and emails of foreign nationals overseas—even if those communications involve a U.S. citizen—and the data can then be searched by U.S. agencies in connection with national security investigations.

Under rules approved by the FISC, any search of that data involving a U.S. citizen must be for the purpose of retrieving foreign intelligence information or evidence of a crime, be reasonably designed to avoid unnecessarily retrieving information not related to the purpose and be justified by a specific factual basis.

Those rules have often been violated.

“We know that the [National Security Agency] and [Department of Justice] have repeatedly reported the unauthorized use of backdoor searches of the 702 database.

“And, as a release from the Brennan Center pointed out, internal oversight measures, hailed as robust, failed to prevent flagrant abuses, including 133 warrantless searches aimed at Black Lives Matter protesters and 19,000 searches for communications to a single congressional campaign,” said ranking member Sheila Jackson Lee (D-Texas).

In 2021, the FISC found “widespread violations” of the rules. Those violations included searches for the communications of government officials, journalists, political commentators, and a member of Congress.

FBI Director Christopher Wray implemented procedural changes for FISA queries in 2021 and 2022, which provided a 90 percent improvement in compliance.

“The bureau is implementing further measures both to keep improving our compliance and to hold our personnel accountable for misuse of Section 702 and other FISA provisions—including through an escalating scheme for employee discipline, culminating in possible dismissal,” Mr. Wray told the House Judiciary Committee on July 12.

That’s not good enough for Rep. Jerrold Nadler (D-N.Y.), ranking member of the full Judiciary Committee.

“Chairman Biggs and I agree on very little, but here is one place we agree,” Mr. Nadler said at the subcommittee hearing. “Whatever we think of the last administration, whatever we think of the current administration, we cannot count on the next administration to get this right.

“We have to build a Section 702 regime that fully respects our privacy no matter who’s in charge. Not 90 percent. All of our privacy.”

Amend or Abandon?

One option for dealing with the law would be to allow it to sunset. Rep. Matt Gaetz (R-Fla.) favored that option. “The patient is not saveable,” Mr. Gaetz.

Jonathan Turley, a professor at George Washington University Law School, said that was a viable option.

“The question is whether Congress feels that these abuses are so serious that you want to use a rule that ‘If you abuse it, you lose it,’ Mr. Turley said.

He noted that federal agencies have a history of promising to improve compliance without making meaningful changes.

Yet most speakers appeared to favor some version of reform rather than abandonment.

Mr. Nadler, who has never voted to renew Section 702, said he would entertain the possibility of doing so if the privacy issues could be adequately addressed.

Gene Schaerr, general counsel at Project for Privacy and Surveillance Accountability and a former White House counsel, advised against allowing Section 702 to sunset.

“You then have a statutory vacuum, which the Executive Branch loves,” Mr. Schaerr said.

If there is no law prohibiting an action, a president is likely to claim the authority to act, he explained.

“And of course, they tend to read presidential authority broadly.”