The Threat a “Clean” Reauthorization of Section 702 Poses to Gun Ownership and the Second Amendment

We usually think of the government’s domestic surveillance abuses as violations of the Fourth Amendment protections against warrantless searches. Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted to monitor foreign threats on foreign soil. In practice, however, it has been used by the FBI to sweep up the communications of millions of Americans on American soil and to specifically surveil thousands of Americans – all without warrant.

Now, with a House vote looming in April, Congress is considering a “clean” reauthorization – one that stiff-arms debate over amendments that would impose basic guardrails on warrantless surveillance of Americans.

What is obvious – but just as alarming – is that a “clean” reauthorization could also threaten Americans’ Second Amendment rights.

Congress has long prohibited the creation of a federal registry of American gun owners. Yet, as Cato Institute scholar Patrick Eddington explains, Section 702 might offer the government a workaround of the Firearm Owners Protection Act of 1986 “at a level of commercial granularity that a formal registry might never achieve.”

How? Many handguns, rifles, and much of the ammunition sold in the United States are manufactured abroad. These foreign manufacturers are caught in the NSA’s global trawl as they communicate with their U.S. operations about everything from inventory management to purchase orders.

Eddington writes on the Cato Institute Blog:

“When Americans buy a Glock pistol, a Beretta shotgun, or a box of Czech-made Sellier & Bellot ammunition at their local gun store, they likely assume the transaction is between them, the dealer, and perhaps the ATF’s background check system. What they almost certainly don’t know is that the business communications underpinning that entire supply chain – every email, phone call, and text between U.S. importers and their foreign suppliers – is almost certainly being vacuumed up and stored under the Section 702 database.”

Layer onto this the current administration’s push to break down long-standing agency data silos under Executive Order 14243. It takes little imagination to see how the FBI, ATF, or the Department of Homeland Security might do exactly what Congress forbids – create a registry of Americans who own firearms. Add artificial intelligence, and the creation of such a registry goes from possible to easy.

Worse, Section 702 data is retained for years. Even if the current administration does not exploit this capability, it could become a very useful tool for the next administration.

Section 702 thus arms the government with the means to violate not only the Fourth Amendment, but the Second – and even the First. The ability to track what people say, where they go, and whom they associate with opens the door to mapping political, religious, and social networks – core First Amendment activities.

More abuses may soon come to light. By April 10, the administration must produce documents in response to a Cato Freedom of Information Act request detailing instances of noncompliance with the law by federal agencies over the last two years.
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Section 702 has been too prone to scandalous violations of Americans’ rights to give it a green light with no reforms. For the sake of our First, Second, and Fourth Amendment rights, this surveillance authority must be open to debate and reforms.

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