🧵My paper "The Warrant Exception that Isn't: FISA Section 702, 'Defensive' Searches, and the Fourth Amendment" (
@AmULRev
, 2025) is now on SSRN.
Are warrantless "defensive" searches for Americans' communications constitutional? Short answer: Nope. 1/25
🚨Happening now: The House Rules committee considers the Reforming Intelligence and Securing America Act, a bill to reauthorize FISA Section 702.
I'll share thoughts on the hearing below, and you can watch it here:
@Jim_Jordan
starts by highlighting that in a one-year period the FBI violated the rules governing searches of FISA databases 278,000 times, and notes that RISAA, on its own, would do nothing to prevent the worst abuses.
🚨The House votes THIS WEEK on a bill to reauthorize FISA Section 702. As we say in this
@BrennanCenter
resource, the Reforming Intelligence and Securing America Act is "reform" in name only and won't prevent spying abuses unless significantly amended.
The intelligence community hasn’t earned the benefit of the doubt when it comes to Section 702. So for
@jahimes
to wave away concerns by saying “it’s classified” isn’t a compelling or satisfactory answer.
Warrantless government access to Americans’ private communications flies in the face of the Fourth Amendment, invites the very abuses that we have seen, contravenes our nation’s values—and does not keep us safe. 17/18
Second, the bill should be amended to close the data broker loophole that government agencies use to buy their way around the Fourth Amendment. The government shouldn't be able to buy Americans' location information or browsing history without a warrant.
This is a fair question from
@SeanVitka
to
@jahimes
(screencapping to include context). Rep. Himes has access to classified information, but others with similar access (like
@MJZwills
) have concerns about expanding FISA’s definition of Electronic Communication Service Provider.
@RepJerryNadler
Rep. Nadler highlights that a warrant requirement would safeguard Americans' civil liberties, without compromising intelligence agencies' ability to protect national security. He's right:
We can protect Americans' privacy *and* national security. Congress should see claims to the contrary for what they are: specious attempts to scare lawmakers into rejecting commonsense measures to protect our privacy. 18/18
What amendments are needed? First, any bill reauthorizing 702 must close the backdoor search loophole that's abused to spy on protesters, politicians, and more. Agencies must get a warrant before searching for Americans' private communications. More here:
@jahimes
Rep. Himes now claiming that the FBI's internal reforms have improved things. Doesn't mention that the FBI still performs thousands of baseless searches for Americans every year, including for a U.S. Senator, a state senator, and a state court judge *after* the rules were enacted
(By the way, the government says it should be allowed to govern itself--but as far as the public is aware, nobody has ever been fired for these abuses.)
@RepThomasMassie
now drilling down on the intentional abuses of the Section 702 database. Reminder, those included people searching for family members, colleagues, potential tenants, and people they met on online dating sites.
He and I likely disagree on whether this expansion of FISA is justified. But that he’s not confident enough in his position to entertain reasonable questions (however bombastically phrased) is troubling.
@RepMikeTurner
either doesn't know what's in his own bill, or he's lying about it. Claims the bill doesn't have special protections for members of Congress. There's no question about it: it does.
@BridgetPhetasy
There’s still time to stop it—the Senate will have more votes on it over the next couple of days. That’s why it’s so important for people to tell their Senators to oppose the bill in its current form!
@Jim_Jordan
@Jim_Jordan
closes by calling for a warrant before the government searches for Americans' private communications. Says base bill reforms won't prevent abuses. Too right!
That's also why Congress should not enact any "short-term" reauthorization of Section 702 that doesn't limit the government's ability to get new certifications. Without such a limitation, the government will go to the FISA Court and get *another* year-long approval. 5/8
It’s fine that HPSCI members are opposed to fixing the backdoor search and data broker loopholes. They’re wrong and out of step with 75% of Americans, but that’s their right.
What’s unconscionable is that they would try and tank efforts to let the House *vote* on these issues.
Intel and Judiciary members are theoretically supposed to get amendment votes if a bill comes to the floor.
Judiciary guys want a vote on warrant requirement, data brokers, etc—two provisions Intel members and admin are deeply opposed to.
@chiproytx
highlighting that this bill was designed to prevent a vote on
@WarrenDavidson
's amendment to prohibit intelligence and law enforcement agencies from purchasing Americans' sensitive information from commercial data brokers.
@RepMikeTurner
claims there's no warrantless searches of Americans' data under FISA. That's a blatant mischaracterization. Americans can't be *targets* of warrantless surveillance. But our communications are "inevitably" captured by this surveillance.
My
@BrennanCenter
colleague
@LizaGoitein
and I have a recent piece in
@JustSecurity
explaining why RISAA is not a reform bill, and the changes that are needed to protect Americans' privacy and civil liberties. You can read that piece here:
Good colloquy between
@RepMGS
and
@RepJerryNadler
, pointing out that due process and Fourth Amendment protections are necessary precisely *because* they make it harder for the government to violate people's civil rights.
@RepMikeTurner
claims that Congress is coming down to the wire for reauthorizing Section 702 because of the need to carefully rein in the intel agencies. Pretty shocking claim, given he personally killed a deal that would have led to a vote in February:
Congress is considering reauthorizing FISA Section 702.
In this piece for
@thehill
, I explain why it should not do so without closing the legal loopholes that allow warrantless searches of Americans' communications. 1/8
It would be helpful if
@jahimes
and others who support expanding FISA could give some explanation of why an expansion is necessary beyond “it’s classified.”
There are good reasons to be troubled by this expansion, as FISA amicus
@MJZwills
has explained.
@Jim_Jordan
He notes that he and
@RepJerryNadler
were before the committee two months ago. What he doesn't mention:
@RepMikeTurner
and
@jahimes
weren't there, because they backed out of a deal to bring a similar bill to the floor:
🚨20+ organizations, including
@ACLU
,
@BrennanCenter
, and
@savingprivacy
have sent
@SenSchumer
a letter urging him to keep FISA Section 702 out of the continuing resolution.
RT if you agree the Senate shouldn't sneak warrantless surveillance into the CR!
@BrennanCenter
And we have another one-pager with our partners
@EPICprivacy
and
@FreedomWorks
assessing the inadequacy of RISAA's "reforms," which would codify the unacceptable status quo:
@RepJerryNadler
says he cannot support the reauthorization of Section 702 without serious reforms. Plugs the House Judiciary Committee bill, notes that it passed the fractious committee 35-2.
@RepMikeTurner
emphasizing that he doesn't want the government to have to get a warrant to search "Hamas's data." Of course, he thinks that peaceful protesters in the U.S. are Hamas, so we probably shouldn't trust him on this:
@jahimes
Also touts the prohibition on "evidence-of-a-crime-only" searches. In 2022, the FBI performed 204,090 backdoor searches for Americans' private communications. This change would have stopped them from accessing those comms in only *two* instances.
@Jim_Jordan
swats this down pretty quickly. Rightly notes that the question is not about the collection of information under 702, but about searching Section 702 databases for Americans' private communications.
@jahimes
now says that Section 702 is a critical national security tool. But that's a non-sequitur--the real question is whether reforms to protect Americans' privacy would compromise that value. They wouldn't:
@RepMikeTurner
says Section 702 is about foreign intelligence surveillance of non-Americans abroad. Which is true--but obviously incomplete. (If surveilling Americans wasn't an important part of the program, he wouldn't oppose a warrant requirement so vociferously.)
Rep. Himes now touting "defensive" queries. Some of the most egregious abuses of backdoor searches--for BLM protesters, members of Congress, and 19,000 congressional donors--were ostensibly "defensive."
The Senate will vote this week on a bill that would dramatically expand warrantless surveillance. Call 202-899-8938 to be connected to your Senators, and tell them to vote "No" on the biggest expansion of domestic surveillance since the Patriot Act!
After years of repeated revelations of abuse of Section 702, it’s fair for the American people to ask why the surveillance is being expanded—particularly when
@jahimes
and others in Congress just voted down a warrant requirement for searches of Americans in Section 702 data.
Some professional news: This summer, I will be joining
@WidenerLawCW
as an assistant professor of law. I will miss my brilliant colleagues at the
@BrennanCenter
, but I am thrilled to be starting my dream job as a law teacher and scholar!
@RepThomasMassie
Now asking Rep. Turner about who Section 702 surveillance targets. Drilling down on Turner's mischaracterization that surveillance targets only terrorists. (Many of them are people who are associated with foreign governments--and who Americans contact for innocent reasons.)
This point also ignores recent developments in Fourth Amendment caselaw, which absolutely do restrict the ability of the government to search through information it's lawfully seized without getting a warrant justifying the search.
CC:
@OrinKerr
@RepJerryNadler
very patiently explaining what the warrant requirement he and
@Jim_Jordan
support would do. Rules committee members have to break in to stop
@RepMikeTurner
from cutting him off.
@RepThomasMassie
now asking
@RepMikeTurner
about what standard would be needed to search for someone appearing at a protest about the treatment of Palestinians. Asks why not require a warrant for those searches.
@RepMikeTurner
making a false comparison between Section 702 and the "incidental overhear" doctrine. But Section 702 has no individualized judicial review at any point--which is why a post hoc warrant requirement is so important!
@jahimes
claiming that there are meaningful restrictions on the targets of 702 surveillance. The truth is that under FISA's definitions, virtually any non-American could be a lawful target for surveillance. The more targets, the more likely Americans' communications are captured.
It's a good question, especially given Turner's claim that 702 is needed to allow warrantless searches for... pro-Palestinian protesters. (At the hearing, he's no back-pedaling, saying that merely appearing at a protest shouldn't subject you to a search.)
FISA Section 702 has a "sunset" provision. If Congress does nothing, the law expires on December 31. What happens if Congress lets the law lapse?
You probably think the spying would stop. Nope: Surveillance under Section 702 will continue until April 2024.
Here's why. ⬇️ 1/8
In 15 years, will this expansion be justified? Will the abuses of Americans’ rights—there are *always* abuses—be minimal and offset by real national security value? Maybe. But that hasn’t been the pattern with backdoor searches of Section 702 data.
Telling:
@RepMikeTurner
just referred to policies "we're" putting in place in reference to internal changes at the FBI. That he sees himself as part of what the FBI, rather than as a member of a co-equal branch with oversight responsibility, tells you all you need to know.
Members get notified when they are searched by the FBI, and in certain circumstances, the FBI has to ask their permission before running a search. You and I? We'll never know--let alone be asked permission.
The government is lobbying hard to retain FISA Section 702, which it uses to gain warrantless access to Americans’ communications. At the same time, it’s stalling on a statutory obligation declassify crucial information about how this program has been operating. 1/14
The House votes this week on whether the government needs a warrant before searching for Americans’ private communications obtained under FISA Section 702.
As I explain in
@thedispatch
, a warrant requirement isn’t radical: Congress has done it before.
The House votes tomorrow on a bill to reauthorize FISA Section 702. Leading up to that vote, the administration is trying to bamboozle lawmakers by claiming (as in this
@politico
article) that surveillance reforms would make Americans less safe. 1/18
The Privacy and Civil Liberties Oversight Board recently released its long-awaited report on FISA Section 702.
The report reveals new surveillance abuses and makes a compelling case for reforms, as I explain in this
@BrennanCenter
blog post. 1/9
@RepThomasMassie
asking the witnesses whether Americans have a Fourth Amendment right against warrantless backdoor searches.
@RepMikeTurner
says, essentially, no, protections are only statutory.
@RepThomasMassie
@RepMikeTurner
@RepMikeTurner
claiming that the FISA Court would need 2,000 new judges to assess backdoor search warrants. That's a massive over-estimate, especially given the exceptions for emergencies, permission, and cybersecurity searches in the warrant requirement.
Today in
@thehill
, I explain why reforms to FISA Section 702 to protect Americans' privacy rights won't prevent the law from being used to combat international fentanyl trafficking in the ways the Biden administration has described. 1/10
It can be tough to keep up with efforts to reform FISA Section 702 and other easily abused surveillance authorities. To help, the
@BrennanCenter
recently put together a landing page that collects relevant materials we've issued this year:
Federal intelligence and law enforcement agencies increasingly evade Fourth Amendment warrant requirements by purchasing Americans' private information from data brokers.
New legislation from
@WarrenDavidson
and
@RepSaraJacobs
would end that abuse. 1/3
@RepMikeTurner
and
@jahimes
now pooh-poohing concerns that RISAA could reauthorize Section 702 permanently. As
@LizaGoitein
has explained, those are serious concerns. If this is enacted, you can bet intel officials will say there's no sunset.
Buried in the Section 702 reauthorization bill that the House will consider this week (RISAA) is a provision that could result in the *permanent* reauthorization of this deeply-flawed authority—without a single reform. 1/11
Today in
@just_security
,
@LizaGoitein
and I discuss the recent report issued by the HPSCI FISA Section 702 Working Group majority, which recommends "reforms" that would fail to prevent the worst abuses -- and would *expand* surveillance. 1/20
🚨
@Wired
reports that
@RepMikeTurner
told congressional staff that FISA Section 702 is needed to spy on protesters at closed-door briefings opposing surveillance reforms. His slides showed people peacefully protesting US aid to Israel. 1/11
@Jim_Jordan
: "The expansion is just that: an expansion." Says when you expand who you're surveilling outside the United States, you expand the Americans whose communications will be captured. Precisely.
@RepTeresaLF
now highlighting that surveillance reform is not a partisan issue. She's right--Americans overwhelmingly want surveillance reforms, recent polling shows:
The Fifth Circuit's recent decision in Doe v. Mckesson flies in the face of established First Amendment law and could chill protest in Mississippi, Louisiana, and Texas, as my
@BrennanCenter
colleagues Theo Tamayo and
@RachelBLevinson
explain here:
New
@BrennanCenter
blog:
@SpeakerJohnson
shouldn't reward the House Intel Committee's bad behavior by denying members the chance to vote on surveillance reforms. He must schedule a standalone vote on Section 702, not jam it into the coming spending bills!
@RepRalphNorman
(Side note: Members keep calling this a "notification" requirement. Don't forget that in certain circumstances, the FBI also has to get members' *permission* to perform searches.)
@RepRalphNorman
@RepRalphNorman
now asking about what penalties there are for people who violate the rules governing backdoor searches. Worth noting that the FBI says that none of the previous abuses have risen to the level that would be punished under these new punishments.
There's some talk of using Section 702 to target fentanyl traffickers. To be clear, the government is already doing this. And there's no indication that a warrant requirement for backdoor searches would interfere with those efforts:
The issue isn't Section 702's value; it's if protections for Americans' privacy would harm national security.
In short: No. The government has provided no examples where privacy reforms would endanger Americans.
Case in point: this intel wasn't found using backdoor searches.
Important context here: The House is set to vote on the hotly contested Section 702 of surveillance law. We understand that the intel on this apparent threat was gathered under 702. Turner wants this to be a lesson in why 702 is valuable and his colleagues should vote for it.
@chiproytx
For example, he says, sudafed is used in the manufacturing of meth. Grilling Rep. Turner on why sudafed manufacturing wouldn't fall within the ambit of this expansion. Rep. Turner doesn't have an answer (because likely would--and that's certainly how the gov't would read it).
@chiproytx
now highlighting the expansiveness of the HPSCI amendment to expand FISA's definition of foreign intelligence to include illegal narcotics trafficking; notes that it could sweep in the manufacturing of a huge number of precursor chemicals with lawful uses.
@chiproytx
@chiproytx
now asking about the HPSCI amendment that dramatically expands what businesses could be compelled to provide surveillance assistance to the government. I trust
@MJZwills
on this much more than I trust
@RepMikeTurner
:
@RepMGS
is now up. Asking clarifying questions to
@RepMikeTurner
about some of the things he's said during the hearing. I can understand her confusion--not clear how well he knows this bill.
This morning, I came across this extraordinary statement from a senior Biden administration official last week saying that negotiations about the reauthorization of FISA Section 702 should be conducted outside of the view of the American public. 1/8
For more on FISA Section 702 and surveillance reform, follow my colleague
@LizaGoitein
and check out the materials on this
@BrennanCenter
resource page. 👇
In this letter, the administration repeats its claim that commonsense reforms to FISA Section 702 would threaten national security. What I still haven't seen: a reason why a warrant requirement for "backdoor" searches for Americans' communications would make us less safe. 1/10
NEW: Justice Department sends letter to House and Senate lawmakers citing importance of FISA.
Letter cites how Section 702 particularly helps combat terror organizations like HAMAS amid conflict in Middle East.
In the
@washingtonpost
,
@DrGupta46
says that FISA Section 702 is critical to combatting the opioid crisis, because the government uses it to disrupt illicit fentanyl trafficking.
But that's not an argument against reform--it's an argument for it. 1/13
Reminds me of the best law review article I’ve ever written.👇
(Which, tragically, is still unpublished, so if any journals want to take it via the
@brianlfrye
/
@msmith750
Twitter submission method, please hit me up!)
First, some background (skip ahead four posts if you're already familiar): Section 702 lets the government collect the communications of non-Americans located abroad without a warrant. This collection "inevitably" sweeps in Americans' messages, too. 2/18
🚨
@USProgressives
come out in favor of an amendment to the FISA Section 702 bill the House will vote on tomorrow that would require the government to get a warrant before searching for Americans' private communications in Section 702 databases.
Alarmed at reporting that
@SenSchumer
plans to include a short-term reauthorization of FISA Section 702 in the continuing resolution.
Short-term reauthorization is unnecessary and would allow the government keep violating Americans' civil rights. 1/6
This is not true.
The CIA identified Mihdhar in January 2001, but they didn't share that information with the State Department or FBI until after 9/11.
You don't have to take my word for it--here's what the 9/11 Commission Report has to say👇
Relevant from my exclusive with intelligence officials last week: “The greatest example, Abizaid says, is if Section 702 existed prior to 9/11, the deadliest terror attack in human history might have been prevented. The US intelligence community had no ability at the time to
The government says a warrant requirement for searching for Americans' private communications acquired using FISA Section 702 would make us less safe. But its own statements about how it has used the law don't support that claim. 1/8
Actually: We don't know if the FBI's warrantless searches for Americans' private communications collected under Section 702 are down. The FBI searched for 57,094 (American) *identifiers* last year, but ODNI stopped reporting the total number of searches, which is higher. 1/5
New: The number of FBI searches of the database of a warrantless surveillance program was cut more than in half in 2023, according to a U.S. intelligence report released Tuesday.
On
@TheRecord_Media