Section 702 authorizes warrantless surveillance and therefore may only be targeted at foreigners abroad. But the surveillance inevitably sweeps in Americans’ communications. Despite Congress’s mandate to “minimize” the retention and use of such communications, the FBI, NSA, CIA, and NCTC routinely search Section 702-acquired data for Americans’ phone calls, emails, and text messages. The FBI conducted 200,000 of these “backdoor searches” in 2022 alone and has engaged in what the FISA Court called “widespread violations” of the rules governing such searches.
Congress should close the backdoor search loophole by requiring the government to obtain a warrant before searching Section 702 data for Americans’ communications. This document dispels myths that opponents of Section 702 reform frequently promote with respect to both backdoor searches and the proposal to require a warrant for such searches.