Mass Surveillance Is Dangerous for American Communities: Reforming the Section 702 Spying Regime

Warrantless surveillance of Americans is once again in the public eye, at a moment when its impact on communities of color, immigrants, and protesters has become increasingly clear. On April 20, 2024, after months of public debate, Congress reauthorized and expanded the government’s surveillance powers under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Congress’s failure to enact essential reforms is disappointing given recent disclosures about how the Federal Bureau of Investigation (FBI), the National Security Agency (NSA), and the Central Intelligence Agency use this law to surveil Americans, especially historically marginalized communities. 

Under Section 702, the government collects and stockpiles enormous amounts of Americans’ international communications, including their texts, emails, phone calls, and chats on social media platforms. While the law requires this surveillance to be directed at people overseas, the government casts such a wide net that it invariably sweeps up Americans—including many who are communicating with family members, friends, or business contacts abroad. U.S. intelligence agencies describe this spying on Americans as “incidental,” but in reality, the government treats it as a rich, ongoing source of intelligence for domestic investigations.

To conduct this surveillance, the government enlists many of the biggest corporate names in U.S. technology and communications. It obtains users’ messages and data from apps like Facebook, Gmail, and Outlook by compelling the assistance of companies like Meta, Google, and Microsoft. It also taps into the internet’s central arteries with the help of telecommunications giants like Verizon and AT&T, scanning internet traffic in bulk as it flows through the companies’ equipment.

Domestic Surveillance and Abuses

The government uses Section 702 as a warrantless backdoor into Americans’ private communications. Although the government’s initial “targets” are hundreds of thousands of foreigners overseas, agents routinely turn around and search through the resulting pool of data for the messages of individual Americans. FBI agents have run these “backdoor searches” millions of times over the last five years—so often that government lawyers have called this technique the “FBI’s Google.” While the number of annual searches has recently decreased, in 2022, the FBI searched its Section 702 databases for Americans’ communications over 200,000 times. Each one of those searches occurred without a warrant, contrary to bedrock constitutional protections against unreasonable searches and seizures.

An astounding number of these searches do not even comply with the agencies’ own lenient rules, resulting in hundreds of thousands of violations in recent years. For example, an FBI agent searched for communications connected to a personal family dispute, and an NSA analyst searched for communications of two people they met through an online dating service. FBI agents have also unlawfully searched for the communications of 19,000 congressional donors, current and former government officials, and community leaders who applied to participate in the FBI’s “Citizens Academy.” The FBI often uses these warrantless searches to pursue domestic investigations on U.S. soil, yet in many instances, agents wrongly invoke “foreign intelligence” to justify their searches.

As explained below, these unlawful searches echo the surveillance abuses of the 1960s and ’70s, when the FBI and other intelligence agencies pursued a campaign of covert and intrusive spying on civil rights leaders and groups, antiwar protesters, and political dissidents. For example, under J. Edgar Hoover, the FBI claimed that surveillance of Dr. Martin Luther King Jr. was justified to combat the spread of foreign communist influence, when it was driven by hostility toward the civil rights movement. The FBI also surveilled labor leader César Chávez and his farm workers’ movement, based on claims he had a “subversive” background. The NSA took part as well, tapping the phone calls of Vietnam War critics, including Muhammad Ali, Jane Fonda, and then sitting senators.

Spying on Communities of Color, Religious Minorities, and Protesters

While Section 702 surveillance affects many Americans, recent disclosures about FBI abuses have spotlighted its impact on communities of color, religious minorities, and protesters, among others. Immigrants, too, are likely to be frequently swept up in this surveillance, given that many communicate regularly with family and friends overseas. Persistent government secrecy means that the public lacks a full accounting of the government’s use of Section 702 to surveil Americans, but the episodes below underscore the need for far stricter court oversight and significant congressional reforms.

For years, FBI agents have used Section 702 to conduct discriminatory surveillance of American Muslims and people of Middle Eastern or South Asian heritage in the United States. This spying continues a pattern of biased and unjustified profiling of these communities by the FBI, the Department of Homeland Security, and local police departments in the decades since 9/11. Among the Section 702 violations the government has disclosed, in 2016 and 2017, the FBI searched its databases for information about two men of “Middle Eastern descent” whom a witness saw loading cleaning supplies into a car. That description alone prompted agents to subject the two men to searches of their communications, even though the FBI appears to have had no information indicating that they were connected to criminal or foreign intelligence activities.

More recently, an FBI agent admitted that he deliberately described Section 702 searches related to U.S.-based mosques as “not involving U.S.-person[s]”—thereby avoiding internal oversight of those searches. Such surveillance is part of a long history of FBI spying on mosques, which notably includes the post-9/11 surveillance of hundreds of Muslim Americans belonging to at least eight mosques in Orange County, California. With no requirement to obtain a warrant based on probable cause, the government can too easily use Section 702 to profile and surveil Muslim American communities.

Section 702 has also played a role in the government’s long track record of wrongly surveilling and prosecuting Asian Americans, particularly Chinese American researchers. For more than a decade, the FBI and other agencies have pursued decorated scientists and academics with connections to China—most notoriously, as part of the “China Initiative” from 2018 to 2022—often based on biased and flimsy pretenses. As part of that effort, the FBI and Department of Justice cast many run-of-the-mill investigations of Chinese Americans as “national security” or “espionage” investigations, even though the vast majority of prosecutions involved charges like false statements or failing to disclose affiliations in federal grant applications. Many of those prosecutions proved unfounded, with an extraordinarily high rate of failure. But by tying these cases to national security, the FBI gave its agents permission to use a set of highly intrusive surveillance tools that would not otherwise have been readily available—including Section 702 backdoor searches.

Indeed, for years, it was the FBI’s practice for agents to run a Section 702 backdoor search whenever they opened an investigation purportedly related to national security. That includes, for example, the investigation of Professor Xiaoxing Xi, a Chinese American physicist represented by the American Civil Liberties Union (ACLU), where we work. In May 2015, FBI agents entered Professor Xiaoxing Xi’s home with guns drawn and charged him with wire fraud based on claims he had unlawfully shared information with scientific colleagues in China. As laid out in his civil rights lawsuit, the FBI relied on Xi’s intercepted emails and surveillance of his communications—including backdoor searches under Section 702—in its investigation. But in reality, those intercepted emails showed that Xi was in fact communicating with scientific counterparts about a technology that had been public for years. The prosecutors dropped the charges four months after Xi’s arrest, but the damage to him and his family is irreversible. Xi’s case is emblematic of the government’s wider practice of using warrantless searches to pursue baseless investigations of Asian American scientists.

In another echo of the surveillance abuses of the civil rights era, Section 702 surveillance has been used to spy on racial justice protesters in the United States. Following George Floyd’s murder by Minneapolis police, the FBI searched Section 702 databases at least 141 times for information associated with those arrested in connection with protests against police brutality. The Department of Justice later determined that the searches did not meet even the extremely permissive standards in the FBI’s rules, which require such queries to be reasonably likely to retrieve foreign intelligence information or evidence of a crime. In a report calling for major reforms, the Privacy and Civil Liberties Oversight Board—an executive branch agency—noted that between November 2020 and December 2021, “non-compliant queries related to civil unrest numbered in the tens of thousands.”

These abuses of Section 702 surveillance are not limited to those out protesting. In October 2022, the FBI ran a query using the social security number of a state judge who had “complained to [the] FBI about alleged civil rights violations perpetrated by a municipal chief of police.” The Foreign Intelligence Surveillance Court (FISC)—a secretive federal intelligence court—found that the search violated the FBI’s own policies and the statute itself.

Reforming Section 702 to Prevent Abuses

Section 702, in its current form, is unconstitutional. Warrantless surveillance of Americans violates the Fourth Amendment’s prohibition on unreasonable searches and seizures. Although the secretive FISC has approved the program behind closed doors, the government has repeatedly prevented public Article III courts from reaching the merits of legal challenges—especially claims that backdoor searches targeting Americans are unlawful. In civil cases, the government has relied on standing doctrine and the state secrets privilege to get cases dismissed.

In criminal cases, defendants often lack notice that the surveillance was used against them. In the handful of cases where defendants have received notice, the courts have upheld the initial surveillance directed at foreigners but have not resolved whether the government’s many backdoor searches targeting Americans are legal. The Second Circuit has examined the issue most closely—recognizing that querying Section 702 databases for Americans’ communications is a distinct “Fourth Amendment event.” But the Second Circuit remanded the case to the district court for further factual and legal analysis and, three years later, the district court has yet to rule.

Because fair, adversarial judicial review of Section 702 surveillance is so difficult to obtain, it is all the more important for Congress to act and pass significant reforms. First and foremost, Congress should require FBI agents to obtain a warrant before searching for Americans’ private communications. A warrant requirement would ensure an independent judge approves such searches based on a showing of probable cause. This requirement would almost certainly have prevented many of the abuses described above, like searches of racial justice protesters, from occurring in the first place.

Instead of enacting such safeguards, Congress reauthorized Section 702 on April 20, 2024. Both the House of Representatives and the Senate considered various wide-ranging reforms to the spying regime, including requiring a warrant to search Americans’ communications. Although those measures had strong bipartisan support, reform efforts fell just short of the majorities needed. The House tied 212–212 in its effort to add a warrant requirement, while a similar measure in the Senate drew the support of 42 senators. As a result, the Section 702 spying regime continues to lack basic Fourth Amendment protections—allowing U.S. intelligence agencies to access Americans’ private communications without first obtaining a warrant.

To make matters worse, the reauthorization legislation significantly expands Section 702’s reach. Under the new law, the government may compel a vast range of private companies—from enormous data centers to commercial landlords to mom-and-pop businesses—to give the government access to communications equipment to assist with surveillance. Congress also expanded the government’s ability to use Section 702 to conduct suspicionless searches of people traveling to the United States. Many of the new measures broaden the scope of Section 702 surveillance, ensuring that more people in the United States will have their sensitive data vacuumed up and then subjected to warrantless searches. As this surveillance expands, experience suggests that historically marginalized communities are likely to face outsized government scrutiny.

Section 702 is scheduled to expire again in two years, presenting another opportunity for Congress to make urgently needed changes. Genuine reform of Section 702 surveillance—most importantly, imposing a warrant requirement before Americans’
data can be searched—is essential, especially as it becomes ever clearer that this law has morphed into a domestic surveillance tool. Honoring constitutional protections will go a long way toward reining in abusive surveillance of all Americans but especially unjust targeting of communities of color.