Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes warrantless surveillance and therefore may only be used to target non-U.S. persons outside the United States. But this surveillance inevitably sweeps in enormous volumes of Americans’ communications, because Americans communicate with foreigners. If the government’s intent were to eavesdrop on these Americans, it would have to get a warrant (in a criminal investigation) or a FISA Title I order (in a foreign intelligence investigation). Accordingly, to prevent the government from using Section 702 as an end-run around the Fourth Amendment, Congress directed the government to “minimize” the retention and use of these “incidentally” collected communications of Americans.
Despite this directive, the FBI, CIA, and NSA routinely search through Section 702 data for the express purpose of finding and reviewing the content of Americans’ phone calls, emails, and text messages. The FBI conducted over 57,000 of these “backdoor searches” in 2023 alone, the last year for which the government might have provided complete data. An authority to target foreigners has thus become a powerful domestic spying tool.
Below is a two-pager that explains why Congress must close the backdoor search loophole and highlights new reasons that have emerged since Congress passed the Reforming Intelligence and Securing America Act in April 2024.
