POLITICIZING LAW-ENFORCEMENTBogus “Antifa” Designations and FBI Warrantless Access to Americans’ Communications
FISA Section 702’s “Back Door,” allowing access to Americans’ communications, is ripe for abuse especially in the context of the administration’s campaign to paint “antifa” as an international and domestic terrorist threat. Because it is amorphous and untethered to the facts, the “antifa” label creates a framework for bringing peaceful civil society organizations and everyday Americans exercising their right to protest into the Section 702 surveillance net.
This is part of a series on the FISA Section 702 reauthorization and reform debate.
Congress faces a choice later this month over the FBI’s access to Americans’ email, text, and phone conversations. A surveillance program created nearly twenty years ago – Section 702 of the Foreign Intelligence Surveillance Act (FISA) – will sunset on April 20 if Congress does not reauthorize it. Section 702 allows U.S. intelligence agencies to collect the email, text, and phone communications of foreign nationals located outside the United States. As a byproduct, Americans’ communications are caught in the net as well. Subject to limitations that Congress introduced in 2024, the FBI can dip into that vast database to look for derogatory information on Americans – without a warrant and without probable cause of wrongdoing.
That “back door,” allowing access to Americans’ communications, is ripe for abuse especially in the context of the administration’s campaign to paint “antifa” as an international and domestic terrorist threat (see Section II below). Any expert of national security surveillance law following the government’s escalating actions on “antifa” can connect the dots to FISA electronic surveillance and other counterterrorism and intelligence authorities. Very recent reporting by the New York Times and Puck News points in that direction as well.
Because it is amorphous and untethered to the facts, the “antifa” label creates a framework for bringing peaceful civil society organizations and everyday Americans exercising their right to protest into the Section 702 surveillance net. Hence, the question of whether Congress should reauthorize Section 702 but with a requirement that the FBI obtain a warrant from a federal judge to look at Americans’ communications.
In 2024, the last time Congress faced the same choice in reauthorizing the program, a bipartisan proposal — to require intelligence agencies to get a warrant before accessing Americans’ communications — missed passing by a single vote in the House (212-212 split).
Public and private debates over whether to add a warrant requirement to Section 702 have raged over many years and can, at times, appear repetitive. This year is different. Congress’s decision whether to renew Section 702 comes at a moment when the Trump administration appears poised to expand the database with new collection priorities and to seek Americans’ communications for reasons that are illegitimate and could jeopardize the program as a whole.
