Warrantless queries of Americans' communications through Section 702 of the Foreign Intelligence Surveillance Act (FISA 702) are said to go against the Fourth Amendment's principles, according to Gene Schaerr, General Counsel at the Project on Privacy and Surveillance Accountability. Schaerr argues that these queries, which do not require a judge's independent approval or evidence of wrongdoing, could lead to abuse and disrespect American values.
Those against FISA reforms argue that requiring warrants for U.S. person queries would disrupt valuable processes. However, Schaerr and proponents of reform contest these claims, asserting that a proposed warrant rule has been structured to accommodate the limited and specific situations where queries are genuinely valuable.
"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 warrant rule proposed in 2024 during the 119th Congress provides exceptions to account for all of them."
During debates in 2023-2024, intelligence community testimonies and advisory boards found that U.S. person queries had limited applicability. The proposed warrant rule would not require a warrant when there is consent, for malware tracking, or metadata queries. Schaerr notes that while queries can help in cybersecurity, foreign plots, and foreign recruitment, exceptions such as consent and metadata considerations accommodate these scenarios.
"Myth #2: U.S. person queries need to be done quickly and efficiently, and a warrant rule would slow the process down in a manner that endangers Americans’ lives."
"Reality: The government has never shown queries provide time-sensitive responses, and the warrant rule’s exceptions account for such a scenario if it ever did emerge."
Schaerr challenges the argument that emergencies can't wait for due process, saying no examples have shown that acquiring a warrant is unfeasible in urgent cases. He suggests that the warrant rule's exceptions for exigent situations, consent, and metadata ensure rapid government response without hindrance.
"Myth #3: Warrants are not feasible given the scale of U.S. person queries conducted; adding this rule would overwhelm intelligence agencies and the courts."
"Reality: By permitting warrantless metadata queries, the warrant rule ensures the government will not need to go to court frequently."
In a recent analysis, the FBI conducted over 57,000 U.S. person queries in one year, but only a small fraction resulted in accessing communication content. The proposed rule would only demand warrants for accessing the content, thus reducing the potential burden. Schaerr indicates that the proposed reforms offer a balanced strategy, protecting constitutional rights while addressing national security needs effectively.
With a possible average of fewer than three warranted queries per day, Schaerr believes the reforms would not be overly demanding. Agencies might simply need to seek the consent of involved parties or expand personnel to manage the limited need for warrants, ensuring both constitutional adherence and national security.