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fourth amendment
Boosting Reform Calls, Judge Finds FISA Section 702 Backdoor Searches Unconstitutional
"This is a major constitutional ruling on one of the most abused provisions of FISA," said one ACLU leader. "Section 702 is long overdue for reform by Congress, and this opinion shows why."
Jan 23, 2025
"Better late than never."
That's how Electronic Frontier Foundation (EFF) surveillance litigation director Andrew Crocker and senior policy analyst Matthew Guariglia responded to a federal court ruling unsealed late Tuesday that found warrantless searches conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA) violate the Fourth Amendment to the U.S. Constitution.
Section 702 allows for warrantless spying on noncitizens abroad to acquire foreign intelligence information—but that also leads to the collection of Americans' communications. Abuse of the related database, particularly by the Federal Bureau of Investigation (FBI), has led privacy advocates including EFF to demand that Congress pass significant reforms.
The December decision from U.S. District Judge LaShann DeArcy Hall in the Eastern District of New York, unsealed earlier this week, stems from over a decade of litigation in United States v. Hasbajrami. Agron Hasbajrami was arrested at a New York City airport in 2011 and charged with attempting to provide material support to a terrorist group. The U.S. resident pleaded guilty, and after he was serving his sentence, the government revealed some evidence was obtained without a warrant thanks to Section 702.
In 2017, EFF and the ACLU filed an amicus brief arguing to the U.S. Court of Appeals for the 2nd Circuit that "Section 702 surveillance, including the surveillance of Mr. Hasbajrami here, lacks safeguards for Americans that the Constitution requires." In 2019, the appellate court "found that backdoor searches constitute 'separate Fourth Amendment events' and directed the district court to determine a warrant was required," Crocker and Guariglia explained Wednesday. "Now, that has been officially decreed."
Throughout the litigation, Congress has repeatedly reauthorized Section 702 on a bipartisan basis—most recently for two years last April, meaning it is unlikely to be debated on Capitol Hill again before next year. Still, pro-privacy campaigners and experts welcomed the district judge's recent ruling as a crucial victory and used it to renew calls for congressional action.
"This is a major constitutional ruling on one of the most abused provisions of FISA," Patrick Toomey, deputy director of ACLU's National Security Project, said in a Wednesday statement. "As the court recognized, the FBI's rampant digital searches of Americans are an immense invasion of privacy, and trigger the bedrock protections of the Fourth Amendment. Section 702 is long overdue for reform by Congress, and this opinion shows why."
Crocker and Guariglia argued that the Foreign Intelligence Surveillance Court—which has primary judicial oversight of Section 702—should immediately "amend its rules for backdoor searches and require the FBI to seek a warrant before conducting them."
In the longer term, the EFF experts wrote, "we ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702 absent a number of necessary reforms, including an official warrant requirement for querying U.S. persons data and increased transparency."
"On April 15, 2026, Section 702 is set to expire," they added. "We expect any lawmaker worthy of that title to listen to what this federal court is saying and create a legislative warrant requirement so that the intelligence community does not continue to trample on the constitutionally protected rights to private communications."
Although Hall's ruling was issued against the Biden administration, it was unsealed a day after Republican U.S. President Donald Trump returned to power—backed by narrow GOP majorities in both chambers of Congress. Patrick G. Eddington, a senior fellow in homeland security and civil liberties at the Cato Institute, a libertarian think tank, wondered Wednesday, "Will the new Trump administration appeal the decision?"
"Attorney general nominee Pam Bondi testified under oath at her confirmation hearing that she supported the FISA Section 702 program, though the issue of warrantless 'backdoor' searches did not come up as I recall," Eddington noted.
Tulsi Gabbard, Trump's pick for director of national intelligence "has gone from FISA Section 702
opponent to supporter in record time," he added. "Assuming Gabbard gets a confirmation hearing, asking her about Hall's ruling should be the first question posed to her."
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Amid Spying Fight, House Passes Fourth Amendment Is Not For Sale Act
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," said one advocate.
Apr 17, 2024
While applauding the U.S. House of Representatives' bipartisan passage of a bill to ensure that "law enforcement and intelligence agencies can't do an end-run around the Constitution by buying information from data brokers" on Wednesday, privacy advocates highlighted that Congress is trying to extend and expand a long-abused government spying program.
The House voted 219-199 for Fourth Amendment Is Not For Sale Act (FANFSA), which won support from 96 Democrats and 123 Republicans, including the lead sponsor, Rep. Warren Davidson (R-Ohio). Named for the constitutional amendment that protects against unreasonable searches and seizures, H.R. 4639 would close what campaigners call the data broker loophole.
"The privacy violations that flow from law enforcement entities circumventing the Fourth Amendment undermine civil liberties, free expression, and our ability to control what happens to our data," said Free Press Action policy counsel Jenna Ruddock. "These impacts affect everyone who uses digital platforms that extract our personal information any time we open a browser or visit social media and other websites—even when we go to events like demonstrations and other places with our phones revealing our locations."
"We're grateful that the House passed these vital and popular protections," she added. "The bill would prevent flagrant abuses of our privacy by government authorities in league with unscrupulous third-party data brokers. Making this legislation into law with Senate passage too would be a decisive and long-overdue action against government misuse of this clandestine business sector that traffics in our personal data for profit."
Wednesday's vote followed the House sending the Reforming Intelligence and Securing America Act to the Senate. H.R. 7888 would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless spying on noncitizens abroad but also sweeps up Americans' data.
The House notably included an amendment forcing a wide range of individuals and businesses to cooperate with government spying operations but rejected an amendment that would have added a warrant requirement to the bill, which the Senate could vote on as soon as Thursday.
Noting those decisions on the FISA reauthorization legislation, Ruddock stressed that "today's vote is a victory but follows a recent loss and ongoing threat as that Section 702 bill moves to the Senate this week too."
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," she argued. "That means passing FANFSA and reforming Section 702 authority—and prioritizing everyone's First and Fourth Amendment rights."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, also praised the House's FANFSA passage on Wednesday.
"The passage of the Fourth Amendment Is Not For Sale underscores the extent to which reining in abusive warrantless surveillance is a bipartisan issue," Scott said. "We urge the Senate to take up this measure and close the data broker loophole."
Kia Hamadanchy, senior policy counsel at ACLU, similarly said Wednesday that "the bipartisan passage of this bill is a flashing warning sign to the government that if it wants our data, it must get a warrant."
Hamadanchy added that "we hope this vote puts a fire under the Senate to protect their constituents and rein in the government's warrantless surveillance of Americans, once and for all."
Sen. Ron Wyden (D-Ore.), a critic of the pending 702 bill and FANFSA's lead sponsor in the upper chamber, called the the House's Wednesday vote "a huge win for privacy" and said that "now it's time for the Senate to follow suit."
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'Five-Alarm Fire' as GOP House Speaker Tries to Ram Through Spying Bill
"Absentsignificant amendment, RISAA will do nothing to prevent the government's repeated abuses of Section 702 to spy on Americans," critics said.
Apr 10, 2024
Update (3:45 pm ET):
Nineteen Republicans in the U.S. House of Representatives on Wednesday blocked the GOP speaker's effort to move forward with reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, a controversial spying authority historically abused by government agencies.
"The failure of today's vote makes clear that even with the speaker's finger on the scale, Congress won't reauthorize FISA without meaningful privacy reforms," responded Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project.
"The path forward is clear: We need strong reforms to Section 702, including closing the backdoor search loophole and data broker loophole," he added. "Another short-term extension ignores the genuine privacy concerns that have been raised by members of both parties. It's time to bring a bill with genuine reforms to the House floor."
Earlier:
With just over a week left for the U.S. Congress to renew a major—and highly controversial—state surveillance program before it expires, privacy defenders on Tuesday warned that so-called "compromise" legislation is little more than a ploy to permanently reauthorize warrantless government spying on American citizens.
The Biden administration and members of Congress from both parties are seeking to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits warrantless surveillance of non-U.S. citizens but also captures the communications of Americans.
Following a Tuesday markup session by the House Rules Committee and Wednesday consultations with intelligence officials, House Speaker Mike Johnson (R-La.) is expected to call a vote on the Reforming Intelligence and Securing America Act (RISAA) on Thursday. The bill would reauthorize Section 702 for five years while enacting what supporters call a series of reforms meant to protect Americans against state surveillance.
"Absent significant amendment, RISAA will do nothing to prevent the government's repeated abuses of Section 702 to spy on Americans," said the Brennan Center for Justice, Electronic Privacy Information Center (EPIC), and FreedomWorks in a joint statement.
Introduced in February by Rep. Laurel Lee (R-Fla.), RISAA would reauthorize what the congresswoman called "an indispensable tool that protects us from national security threats within the United States and abroad."
Congress passed a short-term extension of Section 702 last December, with lawmakers unable to agree on whether and how to reform the contentious law that has been abused hundreds of thousands of times, including to spy on protestors, congressional donors, journalists, and others.
RISAA is meant to be a compromise between the Protect Liberty and End Warrantless Surveillance Act and the FISA Reform and Reauthorization Act. The former bill was supported by privacy defenders, while the ACLU warned that the latter "would greatly expand the government's ability to spy on Americans without a warrant."
Proponents are touting RISAA's 56 purported reforms. Johnson asserted last week that the legislation "will establish new procedures to rein in the FBI, increase accountability at the Foreign Intelligence Surveillance Court (FISC), impose penalties for wrongdoing, and institute unprecedented transparency across the FISA process so we no longer have to wait years to uncover potential abuses."
However, civil liberties defenders warn that many of RISAA's so-called reforms are little more than window dressing that preserve the status quo.
"Making 56 ineffective tweaks to a fundamentally broken law is not reforming it," said the Brennan Center, EPIC, and FreedomWorks.
Johnson had previously supported closing the so-called data broker loophole—which the government exploits to purchase sensitive information—and the backdoor search loophole, through which domestic law enforcement agencies can access Americans' communications without a warrant. While the House is expected to vote Thursday on an amendment to close the backdoor search loophole, lawmakers are also likely to vote on three FISA expansions and special protections that only apply to members of Congress.
"This is so disappointing—when Speaker Johnson was on the Judiciary Committee with me, he was in our coalition fighting for major FISA reforms to protect sensitive data. Now that he's speaker, he's folding to spy agencies who want to violate your privacy," Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) wrote on social media Tuesday.
Jayapal lamented that RISAA says the "FBI has to notify congressmembers to spy on us, but regular Americans can be spied on without a warrant?"
Demand Progress policy director Sean Vitka said in a statement, "In a truly staggering betrayal of public trust, Speaker Johnson is now not only sabotaging votes on overwhelmingly popular privacy protections for Americans, he is trying to ram through the Intelligence Committee's expansions of FISA."
"This is a five-alarm fire, born from Speaker Johnson's apparent decision to jam his thumb on the scale and sell out everyone in the United States to foreign data brokers," Vitka added.
Furthermore, RISAA contains a provision that Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center, warns "could result in the permanent reauthorization" of Section 702 "without a single reform."
"The House must NOT pass any legislation that could be read to permanently reauthorize Section 702, let alone permanently reauthorizing it without a single reform," Goitein said. "This provision of RISAA must be fixed, or the bill should be DOA."
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