Abstract
Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans’ communications are “incidentally” collected, too. Once the government has acquired Americans’ communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless “backdoor” searches for Americans’ private communications obtained under Section 702 every year.
Section 702 periodically sunsets; Congress most recently reauthorized it in April of 2024. As the fight over whether to reenact Section 702 heated up in 2023, the government argued—for the first time in the law’s fifteen-year history—that warrantless backdoor searches for Americans’ communications are necessary to identify victims targeted by foreign criminals and intelligence services. These “defensive” searches, the government says, account for many of its most crucial U.S. person queries.
However, as this Article argues, the Fourth Amendment has no “victim” exception. In the domestic criminal context, law enforcement officers are expected to obtain a warrant (or have some constitutionally reasonable basis for not obtaining one) prior to searching protected information to identify victims of a crime or criminal plot. That the government conducts searches of its Section 702 holdings to identify victims does not excuse its failure to obtain a warrant first. Nor do traditional exceptions to the warrant requirement apply. Accordingly, Congress should close the backdoor search loophole, including for defensive searches, and require the government to obtain a warrant prior to searching for Americans in any of its foreign intelligence holdings that were obtained without a warrant.
