Why National Security Would Be Protected Under the Proposed Section 702 Warrant Requirement

Reading the private communications of Americans – without showing evidence of wrongdoing to obtain a warrant from a judge – violates the Constitution, disrespects American values, and opens the door to abuse.

Yet Congress is once again caught up in a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), with some claiming that a warrant rule would endanger lives and national security.

The Center for Democracy and Technology and PPSA teamed up to brief Congress on the realities and actual numbers behind these claims about the examination of “U.S. person” queries – searches of people in America whose texts, emails, and calls get caught up in the National Security Agency’s global trawl of data.

Here are some of the myth-exploding facts from our brief.

MYTH #1: U.S. person queries are immensely important in a broad array of situations, making it dangerous to place restrictions on this important tool.

REALITY: Queries only provide value in a limited set of situations – and the proposed warrant rules provide exceptions to account for all of them.

Testimony from the intelligence community, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board uncovered only a few distinct scenarios in which U.S. person queries provided value. And the proposed warrant rule includes exceptions to the warrant requirement that account for them.

These exceptions include tracking the signatures of cyber threats, gaining consent from Americans targeted for foreign assassination and kidnapping plots, and tracking Americans’ contacts with suspicious foreign contacts. The government has yet to produce a single instance in which a warrant requirement would have impeded such efforts. Even then, the exceptions in reform proposals allow warrantless inspection of metadata – who contacted whom – leaving the government free to track Americans who are communicating with terrorists or foreign spies.

MYTH #2: U.S. person queries need to be done quickly and efficiently in the case of a “ticking time bomb,” and a warrant rule would slow the process down in a manner that endangers Americans’ lives.

REALITY: The government has never shown that queries provide such time-sensitive responses. But if they are needed, and the clock is ticking, once again the reform proposals include exceptions for such “exigent circumstances” scenarios.

In short, the exigent circumstances, cybersecurity, consent, and metadata exceptions to the proposed warrant requirement allow the government to respond to threats quickly.

MYTH #3: Warrants are not feasible given the scale of U.S. person queries – adding a warrant requirement would overwhelm intelligence agencies and the courts.

REALITY: By permitting warrantless metadata queries – such as communications logs – the warrant rule ensures that the government will not need to go to court frequently.

In 2023, the most recent year for which data is available, the FBI conducted queries for over 57,000 unique U.S. person terms, an unacceptable degree of government overreach and fishing expeditions.

Only 1.58 percent of the FBI’s U.S. person queries resulted in FBI agents accessing the content of communications. Thus, even if queries continued to be conducted at the prior rate of 57,000 annually – which is unlikely given that many of these queries were improper or overly broad – a warrant would be potentially applicable to less than 1,000 queries a year.

That’s less than three such queries per day on average, hardly an insuperable burden on the FBI and the courts.

Because the proposed warrant rule would permit warrantless metadata queries – only requiring court approval to access the content of messages – agencies would be able to confirm when a query will yield a “hit” before devoting any time and effort to seeking a warrant.

And most of those two to three queries per day would fall under the exceptions to the warrant requirement.

Our brief to Congress concludes:

“Americans’ basic rights should not be secondary to bureaucratic hurdles and staffing limits. The exceptions and exemptions built into the warrant proposal would allow the government to remain within the boundaries of the Constitution while also having the means to protect national security.”

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