Reforming Section 702: Fourth Amendment Limits on Warrantless Digital Surveillance

Section 702 of the Foreign Intelligence Surveillance Act (FISA) has long occupied a contested space between national security necessity and constitutional constraint. Enacted in 2008, the provision permits warrantless surveillance of non-US persons abroad but has increasingly been used to access communications involving US citizens. Through the practice of “backdoor searches,” federal agents can gain access to Americans’ private communications without a warrant. In March 2026, a bipartisan group of lawmakers introduced the Government Surveillance Reform Act, which would require the FBI to obtain a warrant before accessing Americans’ communications collected under Section 702. [1] The US person queries under Section 702 constitute Fourth Amendment searches requiring warrants, meaning these warrantless querying practices are unconstitutional. By adopting the Government Surveillance Reform Act, Congress can preserve the intelligence value of Section 702 while reaffirming the Fourth Amendment’s core protections. 

FISA was enacted in 1978 to regulate intelligence surveillance and provide judicial oversight through the Foreign Intelligence Surveillance Court (FISC). [2] Section 702, added through the FISA Amendments Act of 2008, authorizes the warrantless targeting of non-US persons reasonably believed to be located abroad. [3] Although Section 702 prohibits targeting US persons, it permits the incidental collection of Americans’ communications. The program’s design “inevitably results in the collection of Americans’ communications,” raising significant constitutional concerns regarding subsequent access and use. [4] Once collected, these communications are stored in government databases that can be queried by agencies such as the FBI using US person identifiers. These queries are conducted without warrants or individualized judicial approval.

The Fourth Amendment protects against unreasonable searches and seizures and generally requires a warrant supported by probable cause. [5] Under Katz v. United States, a search occurs when the government intrudes upon a reasonable expectation of privacy. [6] Historically, the third-party doctrine limited these protections, holding that individuals lack a reasonable expectation of privacy in information voluntarily disclosed to third parties. [7] However, the Supreme Court’s decision in Carpenter v. United States marked a significant shift. The Court held that individuals retain a reasonable expectation of privacy in digital data, emphasizing its “depth, breadth, and comprehensive reach.” [8] Carpenter represents a broader doctrinal shift, in which the decision effectively requires a warrant where the government seeks access to extensive digital data, even when held by third parties. [9]

The main constitutional issue with Section 702 comes during the querying stage. When the government searches a database using a US person identifier, it engages in a targeted investigation of an American individual. US person queries require independent constitutional justification because they represent a separate intrusion beyond the initial collection [10]. Courts have historically upheld Section 702 surveillance, including incidental collection, as constitutional. [11] However, these decisions often predate Carpenter or fail to fully engage with its implications for bulk data collection. Carpenter provides a framework for reevaluating Section 702, with the decision offering “a window into how the Supreme Court thinks about the constitutional implications of bulk data collection,” indicating that warrantless access to such data may violate the constitution. [12]

In 2025, the U.S. District Court for the Eastern District of New York directly addressed the constitutionality of US person queries under Section 702. In United States v. Hasbajrami, the court held that warrantless searches of databases containing Americans’ communications violated the Fourth Amendment. [13] The court distinguished between the lawful acquisition of foreign intelligence data and the subsequent querying of that data. It emphasized that “simply acquiring” communications under Section 702 does not permit the government to later search those communications without a warrant. [14] Building on earlier appellate reasoning that database queries are “separate Fourth Amendment events,” the court concluded that US person queries presumptively require a warrant. [15] Although the decision is not binding nationwide, it represents the first judicial recognition that backdoor searches are constitutionally suspect and signals a growing willingness to apply traditional Fourth Amendment principles to modern surveillance practices.

In 2026, lawmakers introduced the Government Surveillance Reform Act, which would require the FBI to obtain a warrant before accessing Americans’ communications and would impose additional safeguards on surveillance practices. [16] This reform effort reflects a growing bipartisan consensus that warrantless backdoor searches are inconsistent with the Fourth Amendment. Lawmakers have framed the issue explicitly in constitutional terms, emphasizing that Americans’ communications should not be accessible without judicial authorization. The legislation also responds to documented compliance violations, including improper searches involving journalists and political actors, highlighting the limitations of existing oversight mechanisms.

Requiring a warrant for US person queries would align Section 702 with core Fourth Amendment principles. First, querying a database for a US person’s communications constitutes a distinct search. As Hasbajrami demonstrates, the government’s access to stored communications implicates privacy interests independent of the initial collection. Second, a warrant requirement restores the traditional balance between national security and individual rights. Section 702 would continue to authorize warrantless foreign intelligence collection, while requiring judicial approval for domestic-focused searches. Third, the reform addresses documented risks of abuse. Without a warrant requirement, the government may access Americans’ communications without meaningful oversight, undermining public trust and constitutional safeguards. Importantly, a warrant requirement would not undermine national security as courts have long recognized exceptions for urgent investigations so that they can proceed without delay.

While some argue that warrantless queries are necessary for efficient intelligence operations, this argument conflates lawful collection with lawful search. The Fourth Amendment distinguishes between possession and search: even if the government lawfully acquires data, it must obtain a warrant before conducting a targeted search of that data. As Hasbajrami makes clear, allowing unrestricted queries would enable the government to create a repository of communications that can be searched on demand without limitation, effectively circumventing constitutional protections. 

The legal landscape surrounding Section 702 is at a critical juncture. The 2025 decision in United States v. Hasbajrami marks the first judicial recognition that warrantless searches of Americans’ communications violate the Fourth Amendment. At the same time, Congress is actively considering reforms that would codify a warrant requirement for such searches with the Government Surveillance Reform Act. Together, these developments reflect an emerging trend to ensure that digital surveillance is subject to constitutional limits. Congress should adopt the Government Surveillance Reform Act to impose a warrant requirement for US person queries, which would align statutory law with the Fourth Amendment’s evolving protections for digital privacy and remedy the constitutional deficiencies inherent in Section 702’s warrantless surveillance framework. Requiring warrants for US person queries would preserve the intelligence value of Section 702 while reaffirming the fundamental principle that government searches of Americans’ private communications must be subject to judicial oversight.

Edited by Rylee Pachman

Endnotes

[1] Government Surveillance Reform Act of 2026, S 4082, 119th Cong, 2d Sess (Mar 12, 2026), online at https://www.lee.senate.gov/services/files/D96E9015-1008-447E-9273-B51D3C87089A 

[2] Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 USC § 1801 (1978).

[3] Foreign Intelligence Surveillance Amendments Act of 2008 (“FISA”), 50 USC § 1881a (2008). 

[4] Peter G. Machtiger, “Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702,” 14 Harvard National Security Journal 1, 15 (2021). 

[5] US Const amend IV. 

[6] Katz v. United States, 389 U.S. 347, 361 (1967) 

[7] Smith v. Maryland, 442 U.S. 735, 743 (1979) 

[8] Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) 

[9] Alan Z. Rozenshtein, “Fourth Amendment Reasonableness After Carpenter,” 128 Yale Law Journal Forum 1, 5 (2019)

[10] Brittany Adams, “Striking a Balance: Privacy and National Security in Section 702,” 94 Washington Law Review 401, 420 (2019) 

[11] United States v. Hasbajrami, 945 F3d 641, 667 (2d Cir 2019)

[12] Peter G. Machtiger, “Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702,” 14 Harvard National Security Journal 1, 15 (2021). 

[13] United States v. Hasbajrami, 2025 WL 447498, at *1 (EDNY 2025)

[14] Ibid.

[15] Ibid.

[16] Government Surveillance Reform Act of 2026, S 4082, 119th Cong, 2d Sess (Mar 12, 2026), online at https://www.lee.senate.gov/services/files/D96E9015-1008-447E-9273-B51D3C87089A