“Certainly, the Court can imagine situations where obtaining a warrant might frustrate the purpose of querying, particularly where exigency requires immediate querying,” DeArcy Hall wrote. “This is why the Court does not hold that querying Section 702-acquired information always requires a warrant.”
Ruling renews calls for 702 reforms
While digital rights groups like the EFF and the American Civil Liberties Union (ACLU) cheered the ruling as providing much-needed clarity, they also suggested that the ruling should prompt lawmakers to go back to the drawing board and reform Section 702.
Section 702 is set to expire on April 15, 2026. Over the years, Congress has repeatedly voted to renew 702 protections, but the EFF is hoping that DeArcy Hall’s ruling will perhaps spark a sea change.
“In light of this ruling, we ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702 absent a number of necessary reforms, including an official warrant requirement for querying US persons data and increased transparency,” the EFF wrote in a blog.
A warrant requirement could help truly end backdoor searches, the EFF suggested, and ensure “that the intelligence community does not continue to trample on the constitutionally protected rights to private communications.”
The ACLU warned that reforms are especially critical now, considering that unconstitutional backdoor searches have been “used by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, and journalists.”
Patrick Toomey, the deputy director of the ACLU’s National Security Project, dubbed 702 “one of the most abused provisions of FISA.”
“As the court recognized, the FBI’s rampant digital searches of Americans are an immense invasion of privacy and trigger the bedrock protections of the Fourth Amendment,” Toomey said. “Section 702 is long overdue for reform by Congress, and this opinion shows why.”
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