Blaze News investigates: FISA's warrantless surveillance under Section 702 violates Americans' Fourth Amendment rights

The U.S. House of Representatives passed a two-year extension of Section 702 of the Foreign Intelligence Surveillance Act last month, and while the warrantless surveillance authority was said to only target foreign subjects, many Americans' communications could be subject to governmental searches.

At the time, critical reforms that wished to address the pervasive abuse of the law had been rejected. Many privacy advocates argued that the reauthorization of Section 702 included alarming language, which broadened the material that could legally be surveilled by the authorities.

'Warrantless FISA surveillance is an obvious violation of the Fourth Amendment ban on unreasonable searches.'

"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," Luke Hogg, director of policy and research at the Foundation for American Innovation, said.

"By expanding the definition of what constitutes an 'Electronic Communication Service Provider,' the federal government can now require a wide array of services to provide information. Now, cloud services, data centers, and many other services that haven’t historically been covered by FISA are now required to help the federal government surveil foreign citizens."

Intelligence Chairman Mark Warner led the charge in opposing to strip off the expansive language to make it more narrow. However, he offered to take up the issue again later in the year when the committee drafts its annual intelligence authorization bill.

“We are working on it," Warner said. "I am absolutely committed to getting that fixed." He went on to say that the way the House amendment was crafted "raised a whole host of questions," especially concerning electronic communications 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 said.

Section 702 is a violation of the Fourth Amendment

The fundamental issue around Section 702's extension is that it changed the definition of electronic communications service providers. Now, more companies fall under this category, which means that they will be obligated to provide the government access to their communications.

More businesses than ever throughout the U.S. will have to give the government access to Wi-Fi routers, phones, and other electronic equipment.

"Warrantless FISA surveillance is an obvious violation of the Fourth Amendment ban on unreasonable searches," Samuel Karnick, a senior fellow at the Heartland Institute, told Blaze News. "The fact that large majorities in the current Congress do not consider such searches unreasonable shows how far our nation's respect for fundamental rights has declined."

The Fourth Amendment reads as follows:

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.

The Center for Democracy and Technology reported in April that the "House's decision by the narrowest of margins — a 212-212 tie — to renew the legislation for two years without a warrant requirement will allow this abuse to continue, and is a serious blow to Americans' civil rights and civil liberties."

The extension of Section 702 gives the CIA, FBI, and NSA the power to access Americans' private messages without any court approval. There is a backdoor search loophole that has already been used by government agencies to look up the private communications of campaign donors, lawmakers, journalists, and protesters throughout the country.

Nathan Leamer, executive director at the Digital First Project, said 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 added that because so much of the discussion about FISA takes place behind closed doors, including "classified briefings," Americans have to blindly place their trust in the government that there is some justifiable reason why they are leveraging these surveillance powers.

The American Civil Liberties Union exposed what appeared to be a contradiction in President Joe Biden's stance on FISA. Sixteen years ago, then-Senator Biden voted against the FISA Amendments Act, which was an effort to collect Americans' international phone calls, emails, text messages, and other digital communications.

Now, Biden's administration is defending the very same law that he voted against all those years ago. When Biden was still a senator, he said 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 went on to say that he refused 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.”

However, his administration now has the very power he wished to withhold from previous presidents.

The future of unwarranted surveillance

It is still uncertain how the future of unwarranted surveillance might look, but it seems possible that human spying efforts are going away. With the proliferation of artificial intelligence technologies, it is conceivable that the government could reel in vast amounts of personal data under the guise of protecting Americans.

AI-powered systems will inevitably change the nature of data management in the future. One report noted that by 2025, there will be more than 180 zettabytes of data. This vast amount of information, coupled with the steep acceleration of AI technologies, could usher in a more expansive form of mass surveillance that was never possible before.

The bipartisan concern over Americans' privacy since Edward Snowden revealed the dark underbelly of the NSA's spying apparatus may only become more serious with the deployment of more sophisticated AI surveillance tools.

In 2023, Snowden suggested that he was cautiously optimistic about the advent of AI. While some experts have warned that AI could be leveraged by bad actors, the well-known whistleblower said that there are many positive elements of the emerging technology.

Snowden said that AI models could work to push back against government surveillance instead of supporting intelligence programs. "Maybe they could stop spying on the public and start spying for the public," Snowden said, adding that this scenario would "be a net good."

The whistleblower went on to say that "we don't need machines to be like us; we need them to be better than us."

Despite this bit of optimism, Hogg said that Americans who care about their privacy "should absolutely be concerned about the expansion of FISA."

Since there are other ways to "legitimately gather information on American citizens," Hogg added that "without transparency reforms and warrant requirements, this expansion of FISA will almost certainly increase the illegal surveillance of American citizens."

Leamer noted that one benefit of the debate over Section 702 is that it "will sunset in two years, which will give Congress and the American people another opportunity to debate and discern the future of the program."

It is still unclear how far AI might evolve in the next two years and if it will have any bearing on the future of surveillance throughout the country.

Editor's note: This article has been corrected to note that Luke Hogg is the director of policy and research at the Foundation for American Innovation, not the executive director.

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