Biden Knows Section 702 is Unconstitutional, Yet His Administration Still Defends It

Fifteen years ago this week, then Senator Joe Biden voted no on the FISA Amendments Act, which legalized a secret mass surveillance program that allows the government to collect Americans’ international phone calls, text messages, emails, and other digital communications — all without a warrant. At the time, Biden correctly identified this amendment to the Foreign Intelligence Surveillance Act, which created a new authority known as Section 702, as “constitutionally infirm.” Yet today, his own administration is defending this very same law at his request.

Upon passage, then-Sen. Biden stated he was voting no because Section 702 “would be a breathtaking and unconstitutional expansion of the President’s powers and it is wholly unnecessary to address the problems the administration has identified.” He added that he would “not give the President unchecked authority to eavesdrop on whomever he wants in exchange for the vague and hollow assurance that he will protect the civil liberties of the American people.”

The ACLU agreed and filed a lawsuit challenging the law’s constitutionality less than an hour after it was signed by President Bush. In the 15 years since that first legal challenge, President Biden’s prediction that this law would be used to repeatedly violate the civil liberties of millions of ordinary Americans has come true. What Biden did not predict, however, is that one day he would be ordering his administration to defend this very same law.

While the intended purpose of Section 702 is for the government to obtain “foreign intelligence,” in practice, intelligence agencies frequently use it as domestic surveillance tool. In the last year alone, the FBI conducted over 200,000 warrantless “backdoor” searches of Americans’ communications. The standard for conducting these backdoor searches is so low that, without any clear connection to national security or foreign intelligence, an FBI agent can type in an American’s name, email address, or phone number, and pull up whatever communications the FBI’s Section 702 surveillance has collected over the past five years. These backdoor searches allow law enforcement to access constitutionally protected communications that would otherwise be off-limits without a warrant.

More recently, following a FOIA lawsuit by the ACLU, the government released an opinion issued by the Foreign Intelligence Surveillance Court showing that the FBI improperly used Section 702 to spy on Black Lives Matter activists protesting George Floyd’s murder at the hands of police, on January 6th suspects, and over 19,000 donors to a congressional campaign. Members of Congress on both sides of the aisle have decried these abuses, and this week, the House Judiciary Subcommittee on Crime and Federal Government Surveillance will consider it again during a hearing on FISA. At the end of the year, they will vote once again on whether to reauthorize this unconstitutional law.

There is no real evidence that these backdoor searches actually keep Americans safe. Travis LeBlanc, a board member of the nonpartisan Privacy and Civil Liberties Oversight Board, has stated that based on his review, there are “minimal to negligible examples of the value” of these searches. Indeed, the Biden administration has yet to provide one credible example to the public as to why they can only achieve their purpose by continually violating the Fourth Amendment rights of Americans.

Under the Fourth Amendment, every American has the right to be free from unreasonable searches and seizures by the government. There is no question that if the government wanted to obtain our communications directly, they would need to get a warrant. The circumvention of this requirement through backdoor searches is incompatible with the protections provided to us by the U.S. Constitution.

Fifteen years ago, then-Sen. Biden recognized the unconstitutionality of Section 702 and declared it “unnecessary” to achieving the government’s alleged national security and foreign intelligence goals. These words remain true today, even if his administration now pretends they are not. Whether a tool is convenient for the government does not answer the question as to whether that tool is constitutional. It would of course be easier for the FBI if they never had to secure a warrant for any search. But the purpose of the Fourth Amendment is not to make the government’s job easier or more convenient.

Congress has the power to stop these abuses by refusing to reauthorize this surveillance authority without real, fundamental reforms, including requiring the FBI and other intelligence agencies to obtain a warrant before any search of Americans’ communications.