FISA, Section 702 and the Fourth Amendment, What the Law Allows

There are two kinds of conservative who will stay on the phone with you about Section 702 of the Foreign Intelligence Surveillance Act. One is a former prosecutor who has seen what a terror plot looks like when it is caught in time. The other is a small-government libertarian who has read the Fourth Amendment and does not like what happens when the government gets a database. Put them in a room and the argument lasts until the coffee runs out. They are both right about something, which is exactly why the argument never ends.

The law itself has a gift for sounding dull enough to put a teenager to sleep, which is how a lot of power in Washington survives. It has a court that meets in secret, a section number that sounds like a tax form, and a vocabulary, "incidental collection," "minimization," "U.S. person queries," that was apparently designed by people who wanted nobody to ask follow-up questions. So let's ask the follow-ups. What does the statute allow? Where did it come from? And where does the Constitution draw the line?

The two principles on the right

Start by being fair to both camps.

Principle one: the first job of government is to protect the country. The people who built the modern surveillance system did it after watching nineteen hijackers get through because the government's left hand did not know what its right hand held. The most dangerous plots are planned abroad by people who do not announce themselves, and the way to catch them is to listen to their communications. A conservative who shrugs at that is not serious about security.

Principle two: the government is not to be trusted with unchecked power, including a government run by our own side. The Fourth Amendment says: "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 Founders had just lived through general warrants, which let an official search anyone for anything. A conservative who shrugs at that is not serious about liberty.

If you can hold both in your head at once, you understand the debate. If you can only hold one, you will think the other side is stupid or sinister. Neither is true.

How we got here: the Church Committee and the Keith case

The story starts with abuse, which is the story behind most of our protections.

In 1975 and 1976, a Senate committee chaired by Frank Church of Idaho, with Republican John Tower of Texas as its vice chairman, investigated the intelligence agencies. It found programs that would be unthinkable now. The FBI's COINTELPRO operations had spied on and tried to disrupt domestic groups, and its campaign against Dr. Martin Luther King Jr. was a national disgrace. The NSA had for years collected copies of international telegrams, and kept watch lists of Americans. The committee's work led to the creation of permanent intelligence committees in the Senate in 1976 and in the House the following year.

Meanwhile the courts were catching up. In 1972, in United States v. United States District Court, the case everyone calls the Keith case after the district judge, the Supreme Court ruled unanimously, in an opinion by Justice Lewis Powell, that the government cannot conduct warrantless wiretaps of domestic groups in the name of national security. It left open the harder question of surveillance of foreign powers and their agents, and it invited Congress to set up a system for that.

Congress did. The Foreign Intelligence Surveillance Act of 1978 was signed by President Carter. It set up a special court, the Foreign Intelligence Surveillance Court, originally seven district judges, to approve surveillance aimed at foreign powers and their agents inside the United States. The government had to show probable cause that the target was a foreign power or its agent. The proceedings are secret and, unlike an ordinary courtroom, the government is the only party that appears. FISA was a bargain: secrecy for the sake of security, a judge for the sake of liberty.

After 9/11: the law has to catch up with the technology

By 2001 the world was different. A phone call between two people in Pakistan might travel through a switch in the United States. An email between suspects abroad might sit on a server in Virginia. The 1978 statute had been written with 1970s technology in mind, and the old line between domestic and foreign communications did not match the new wires.

After the attacks, the administration of George W. Bush authorized the NSA to conduct surveillance outside the FISA process. The New York Times revealed it in December 2005, and the argument that followed was about whether a president could ignore a statute in wartime. Congress's answer was to rewrite the law. It passed the Protect America Act in 2007, and then the FISA Amendments Act of 2008, signed in July 2008, which created what is now Section 702 of FISA.

Section 702 has since been reauthorized by Congress several times, with a sunset each time that forces a new debate. The most recent cycles I can state with confidence are 2012, 2018 and 2024. For where it stands now, check Congress.gov.

What Section 702 allows, in plain English

Here are the key parts, in order.

1. The targets must be foreigners abroad. The statute lets the government target non-U.S. persons who are reasonably believed to be located outside the United States, in order to acquire foreign intelligence information. It does not allow the government to target an American, anywhere. It does not allow the government to target a foreigner as a pretext to get at a particular American, a practice known as "reverse targeting." And it does not allow the intentional collection of purely domestic communications.
2. No warrant for each target. Instead of approving each target individually, the Attorney General and the Director of National Intelligence jointly certify categories of foreign intelligence to the FISA Court once a year. The court reviews those certifications and the procedures that govern how targets are chosen and how information about Americans is handled, which are called targeting and minimization procedures. Washington has few things reviewed once a year and then trusted for the other 364 days, and this is one of them.
3. Providers must help. Communications companies are compelled to hand over the communications of the targeted accounts.
4. Oversight. The Justice Department and the Office of the Director of National Intelligence audit compliance, the intelligence committees of Congress receive reports, and the FISA Court looks at the procedures. Whether that is enough is the heart of the debate.

The legal logic rests on a Supreme Court decision, United States v. Verdugo-Urquidez (1990), which held that the Fourth Amendment did not protect a nonresident alien's property searched abroad. If a foreign target has no Fourth Amendment claim in that setting, the law's designers concluded, a warrant requirement need not apply to surveillance of that target.

The problem: Americans get swept in

Here is where the trouble starts. When a foreign target talks to someone, the person on the other end might be an American. That American's side of the conversation is captured too. It is called incidental collection, and the word "incidental" makes it sound smaller than it is. The government is not trying to collect it, but the government has it.

Then comes the second problem, the one that animates the libertarian camp more than the first. The collected communications are stored in databases. Agencies such as the FBI can later search those databases using the name, email address or phone number of an American, to see what is there. Critics call these backdoor searches, because the government did not need a warrant to get the data and does not need one to look through it for an American's communications. Defenders call them queries, and say that the information is already lawfully held and it would be negligent not to check it.

The FISA Court has itself criticized the FBI's handling of these queries in opinions that were later made public. And in a different part of the law, traditional FISA warrants, a Justice Department Inspector General report in December 2019 found 17 significant errors or omissions in the applications to surveil a former adviser to the 2016 Trump campaign. That report was about the traditional FISA process and not Section 702, and I do not claim it proves anything about 702. But it showed a thing every Republican should keep in mind: a court that hears only one side depends on the honesty of the lawyer in front of it.

The strongest case for a warrant requirement

Here is the best version of the argument from the civil-liberties side of the right.

The Constitution protects Americans. When the government wants to read an American's email, the Fourth Amendment says it needs a warrant based on probable cause. The fact that the email happened to be captured in a lawful collection against a foreigner does not erase the American's right, any more than a lawful search for drugs allows the police to read the diary they find. The government should be required to get a warrant, or at least a court order, before it searches the stored data for an American's communications to look for evidence of a crime.

The Supreme Court has been heading in that direction on digital data. In Riley v. California (2014) it held that police generally need a warrant to search a cell phone seized during an arrest, and in Carpenter v. United States (2018) it held that the government generally needs a warrant for historical cell-site location records. In both cases the Court said that digital records hold the "privacies of life" and that old rules for physical objects do not automatically carry over. The same logic, the argument goes, should apply to a database of Americans' conversations. The legal history of that idea is in From Writs of Assistance to Your Cell Phone, the Fourth Amendment's Long Fight.

And there's the trust problem. The case against unchecked power is not that today's officials are villains. It is that powers outlive the people who hold them. Power Tends to Corrupt, and Conservatives Should Remember It When They Hold It makes the point about every political camp, and Equal Under the Law Means the Rule Applies to the People in Charge makes it about the government's own conduct.

The national-security answer

Now the strongest reply, also from the right.

One, speed matters. Threat analysts often query the data at the earliest stage, before there is anything like probable cause, to find out whether an American is connected to a foreign plot or is the target of one. A warrant requirement at that stage may close the door before the picture is clear. The plot that is missed is the one nobody had time to chase.

Two, many queries are protective. Agencies search for an American's identifiers to warn a company that foreign hackers are targeting its network, or to find out whether an American is a victim of a foreign plot. Requiring a warrant to notify a victim would be perverse.

Three, the information is already lawfully collected. Searching a lawfully held database is not a new search of the world. It is looking again at what the government already has. Courts have not settled whether a query is a separate Fourth Amendment event, and some, including the FISA Court of Review in a 2008 decision, have recognized a foreign intelligence exception to the warrant requirement.

Four, the 9/11 lesson is about connecting dots. The commission that investigated the attacks documented failures to share and connect information. A rule that makes each connection a litigation event creates the conditions for the next failure.

That is a serious argument, and nobody should wave it away.

Where I come down

I'd argue the answer is not to scrap Section 702 and not to rubber-stamp it. The part of the law that targets foreigners abroad is on solid constitutional ground and has been a major source of intelligence. Let it continue.

The part that touches Americans is where the fix belongs. My view: when an agency searches the stored data using an American's identifier to look for evidence of a crime, it should have to go to a judge. Build narrow exceptions for real emergencies and for victim notification, and make the exceptions auditable by someone outside the agency that benefits from them. Keep the sunset, so Congress has to look again. Require annual public reports on how often Americans' identifiers are searched, in as much detail as secrecy allows.

That is a compromise, and compromises annoy both camps. But the Founders were not afraid of compromise. They were afraid of power without a check. A system that says "trust us" is a system whose check is a pinky promise.

For the wider context, Who Does What in American Intelligence, Explained in Twelve Questions sorts out which agency does what, and Hawks, Restrainers, Realists and Nationalists on the Right, Compared shows why the right splits along these lines on so many foreign-policy questions. The constitutional design behind all of it is the subject of Madison Built a Government Where Ambition Fights Ambition, and It Works. If you want to see how a bill changes this kind of law, How a Bill Really Becomes Law, Including the Steps Schoolhouse Rock Skipped gives the steps, and Why Conservatives Defend Due Process Even for People They Dislike is a reminder of why these rules are written to protect everybody.

The bottom line

• Both camps hold a real principle. Stopping attackers and protecting Americans' privacy are both conservative goals, and neither side should accuse the other of not caring.
• Section 702 targets foreigners abroad. It is not supposed to target Americans. The fight is about what happens when Americans' communications are caught up and later searched.
• Ask for a judge at the search stage. A warrant or court order before an agency searches the stored data for an American's communications is a reasonable line, with narrow, audited exceptions.
• Keep the sunset. A law that has to be renewed gets examined. Tell your members of Congress to use each deadline to demand real reform and real reporting.
• Read the text yourself. The Fourth Amendment is one sentence long and Section 702 is on Congress.gov. Neither one needs a translator.