The Washington Post

America’s spy programs are complex, but the Fourth Amendment is simple. It says the government cannot collect and search through the private communications of United States citizens without a warrant.

Congress is deadlocked on renewing Section 702 of the Foreign Intelligence Surveillance Act (FISA), and the Fourth Amendment points to a straightforward compromise. That is: Keep up overseas surveillance to protect U.S. national security, but require a warrant whenever the resulting database is used to look through a specific American’s communications.

The distinction between foreigners and Americans gets elided, sometimes deliberately, in debates about 702. The program, put into law in 2008, was set to expire April 20, and Congress didn’t have the votes last week to reauthorize it. Instead, lawmakers pushed back its expiration by 10 days and are now scrambling to find a resolution by April 30.

Supporters of a “clean” reauthorization say that failure to do so will expose the U.S. to foreign threats. But almost nobody is advocating that U.S. intelligence agencies stop spying on foreigners. The complaint about the program as it currently exists is that it allows government officials to search the overseas calls, emails or text messages of U.S. citizens without probable cause that they committed any crime.

The Trump administration doesn’t want Congress to add a warrant requirement for such searches, but it hasn’t explained why that dose of Fourth Amendment hygiene would harm national security — especially because proposed bipartisan legislation contains an exception for genuine emergencies. In any case, the point of the Bill of Rights is to keep Americans free from overreaching government even, sometimes, at a cost to their safety.

FISA’s Section 702 lets agencies such as the FBI, CIA and NSA search foreigners’ electronic communications for intelligence purposes. The target might be an Iranian government official who often calls up a Hezbollah commander in Lebanon, or an executive at a French defense company who often calls her American lover.

There’s nothing wrong with targeting foreigners in other countries, who aren’t protected by the Constitution, for warrantless surveillance. Indeed, it is essential to national security. Nor is it necessarily a problem if Americans’ communications are swept up in the process.

In ordinary law enforcement, incidental collection happens all the time: A wiretap on a suspected bank robber isn’t a violation of his mother’s Fourth Amendment rights because his conversations with her are also recorded.

The problem is that an awful lot of information about American citizens is building up on government servers. The feds can then search that data trove to dig up information about individuals they otherwise would have needed a warrant to collect.

As one appeals court put it in 2019: “If such a vast body of information is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet.”

Just how often the program gets misused is up for debate. Congress enacted reforms in 2024 that aimed to tighten access to the database by adding layers of supervision within the executive branch. The circle of people in the intelligence community who can search for an American citizen’s communications has shrunk.

But adding bureaucracy is no substitute for a warrant requirement. If a police officer wants to conduct a Fourth Amendment search of a U.S. citizen, he doesn’t merely get sign-off from other police officers. He gets sign-off from a judge, sometimes in a matter of hours if the need is urgent.

The judge is supposed to bring an independent set of eyes to the process. Requiring spooks or FBI agents in Washington to get a court order before they pore over troves of a particular American citizen’s private communications is not a radical policy. Indeed, it could streamline the process by reducing “the need for the multiple layers of internal oversight that have been established in a futile effort to replicate the function of judicial approval,” as the Brennan Center’s Elizabeth Gotein puts it.

Obfuscation abounds in the 702 debate, but don’t credit claims about the horrors that will befall the U.S. if the program lapses. The foreign surveillance program is valuable, and it will continue. The only question is whether it will continue to present a tantalizing Fourth Amendment loophole for whichever administration happens to be in power. Both parties ought to have the foresight to see the problem with that.