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‘Defensive’ Search Is Not a Recognized Exception to the Warrant Requirement … Yet

The ongoing debate surrounding the use of warrantless ‘defensive’ searches under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has raised critical questions about the delicate balance between protecting national security and safeguarding individual privacy. Recent incidents involving the FBI’s querying of communications related to a Member of Congress without a warrant have ignited concerns about the potential for abuse and the need for a consistent and robust safeguard.

Proponents of the FBI’s approach argue that warrantless “defensive” searches are essential tools in uncovering foreign influence operations and other malicious activities targeting Americans. They contend that by accessing a vast pool of private conversations, the government can efficiently root out threats without being hindered by cumbersome warrant requirements. However, history has taught us that such broad surveillance powers can be prone to abuse, potentially leading to politically motivated spying.

Section 702 grants the government the authority to conduct warrantless surveillance of foreigners abroad, including their communications with American citizens. Critics argue that this provision has been misused, enabling the FBI to deliberately seek out and access Americans’ emails and text messages without any judicial oversight. In light of numerous compliance violations and instances of abuse, lawmakers are now considering reforms to close this contentious backdoor search loophole.

The current controversy revolves around the FBI’s push for an exception, advocating for the retention of the warrantless system for “defensive” searches. They cite recent incidents, such as the scrutiny faced by U.S. Representative Darin LaHood, where they believed he was a target of foreign espionage and influence operations. However, caution is warranted when considering such exceptions, as history has demonstrated how defensive surveillance measures can be exploited for politically motivated surveillance endeavors.

Throughout the past six decades, defensive surveillance has been used as a pretext for monitoring individuals and groups deemed threats due to foreign influence. Disturbing examples include the monitoring of Dr. Martin Luther King Jr., ostensibly justified to defend against alleged communist influence but driven by J. Edgar Hoover’s personal biases. Similarly, the surveillance of antiwar activists, Black civil rights leaders, students, and left-leaning groups during the 1960s and 70s under the COINTELPRO program raises serious concerns about the potential abuse of defensive surveillance powers.

It is essential to address the risks associated with adopting a split warrant standard for “sensitive queries.” While proponents argue that specific categories, such as elected officials, members of the media, and religious figures, should receive enhanced protections, this approach overlooks the government’s history of targeting ordinary individuals who do not fall into these predefined categories. Compliance reports have revealed the problematic nature of U.S. person queries, which can encompass a wide range of individuals, including unsuspecting relatives, crime victims, political commentators, students, law enforcement sources, and business leaders. A “sensitive queries” rule alone would fail to provide comprehensive protection to all individuals in need.

The consistent pattern of abuse over the decades underscores the potential dangers associated with granting a blank check for warrantless “defensive” searches of Americans’ communications obtained under Section 702. While it is crucial to empower the government to investigate and combat genuine threats posed by foreign influence efforts or other malicious actions targeting Americans, it is equally imperative to uphold the principles enshrined in the Fourth Amendment. Our democracy relies on a strong and consistent shield to protect the rights of citizens. Therefore, obtaining a warrant should be the prerequisite before delving into an American’s private communications, regardless of the government's motive or claims.

As discussions continue, striking the right balance between national security and individual privacy remains a paramount challenge. It is a delicate dance that requires thoughtful reforms to ensure accountability and protect the foundations of our democratic society.

Source: Center for Democracy & Technology

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