Warrantless searches on American citizens by U.S. intelligence agencies have reached epidemic proportions.

How bad is it?

At a Congressional hearing this past week, DOJ Inspector General Michael Horowitz detailed how over 3.4 million so-called “backdoor” warrantless searches on Americans have occurred in 2021 alone.

Responding to a question by Representative Matt Gaetz asking what Americans should think about the wholesale domestic breaches of privacy, the IG and the Congress member had this exchange:

Horowitz: “Well, I think what we’ve seen in the various…and I’m limited in what I can say about what’s public, which I think is one of the issues that is worth talking about, which is transparency, here…it’s obviously very concerning that there is that volume of searches. And particularly concerning is the error rate that was reported in the last two years, in the public reporting. 

Gaetz: And the error rate was what?

Horowitz: I believe it was around 30 percent.  

Gaetz: Wow. I’m a lawyer, not a mathematician. But 30 percent, you’re talking about 7 figures [ie. more than one million] of error, in terms of these searches.

Neither Horowitz or others testifying with him could say just how many federal employees or agents currently had authority to initiate backdoor searches on Americans.

The Need For Reform to a Twisted and Abused Patriot Act Era Legal Apparatus

The recent revelations occurred as a result of required public accountability by the FBI, concerning searches supposedly authorized under Section 702 of The Patriot Act. 

The problem with Section 702 is that it fundamentally negates and circumvents higher Constitutional prohibitions against the Federal government conducting warrantless searches of Americans.

The Fourth amendment of the Bill of Rights explicitly protects Americans from this government abuse.

But by specifying that intelligence operatives can do searches of contacts of foreign subjects of surveillance—who may often be American citizens—Section 702 guts Fourth Amendment protections.

Advocacy group Electronic Frontier Foundation (EFF) said the new evidence of government abuse and misuse of Section 702 only did more to underscore the urgent need for reform of the law:

“After a string of scandals, these newly released documents demonstrate some of the steps the FBI took to train personnel who apparently did not understand how to stay within the law’s extremely broad mandate. Namely, to query the collected communications of U.S. persons only if they are investigating foreign intelligence, a crime, or both, still without judicial review. According to FBI director and media reports, these guidelines led to a significant drop in unauthorized searches, but even this ‘dramatic’ drop still allegedly resulted in over two hundred thousand warrantless searches of Americans’ private communications in 2022 alone. That’s two hundred thousand too many; Congress should close the ‘backdoor loophole’ and require the FBI to get a search warrant.

“In addition to stopping the unconstitutional surveillance, Congress needs to include robust new transparency measures into any reauthorization of Section 702 to enable future audits and accountability of these secretive programs. FISA has long contained procedures for private parties to sue over surveillance that violates their rights, including a mechanism for considering classified evidence while preserving national security. But, in lawsuit after lawsuit, the executive branch has sought to avoid these procedures, and the judiciary, including the Supreme Court, has adopted cramped readings of the law that create a de facto national security exception to the Constitution.”

(“Internal Documents Show How Little the FBI Did to Correct Misuse of Section 702 Databases,” 25 Apr 2023.)

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