Co-authored with Gene Schaerr, General Counsel at the Project on Privacy and Surveillance Accountability
Warrantless queries of Americans’ communications obtained via Section 702 of the Foreign Intelligence Surveillance Act (“FISA 702”) are antagonistic to the basic principle of the Fourth Amendment. Deliberately seeking to read Americans’ private communications – but without ever showing evidence of wrongdoing or obtaining independent approval from a judge – violates the Constitution, disrespects American values, and opens the door to abuse. Opponents of FISA reform nonetheless oppose requiring a warrant for U.S. person queries by claiming these queries provide huge value that would be disrupted by a warrant requirement. These claims are false – in reality a warrant rule has been carefully designed to account for the limited value that such queries provide.
MYTH #1: U.S. person queries are immensely important in a broad array of situations, making it dangerous to place restrictions on this important tool.
REALITY: Queries only provide value in a limited set of situations, and the proposed warrant rule provides exceptions to account for all of them.
Opponents of reform frame U.S. person queries as frequently valuable across a wide set of national security goals and investigations, but the recent debates over FISA 702 proved this was false: The Intelligence Community testimony, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board (PCLOB) — based on full access to classified materials — uncovered only a few distinct scenarios in which U.S. person queries provided value. And the warrant rule includes exceptions that account for all scenarios where queries have proven useful.
Under the 2024 proposal, a warrant would not be required 1) when there is consent, 2) to track malware, 3) for metadata queries, or 4) for emergencies. These exceptions fully address the limited areas where queries have proven useful:
- Cyber Attacks: Queries were most useful in the cybersecurity context, helping detect warning signs of future attacks and trace attacks back to their sources. But queries focused on cyberthreat signatures are explicitly exempt. Much of the cybersecurity value of queries focused on network traffic patterns; this involves metadata rather than content, and metadata queries are also exempt from the warrant rule. Finally, any U.S. company or critical infrastructure entity targeted for a cyberattack can simply consent to a query.
- Foreign Plots: Queries were also described as useful in detecting and responding to foreign assassination and kidnapping plots. But once again, the consent exception directly accounts for this need. A targeted American will obviously gratefully accept such a query to enable government protection. And any plot where imminent or ongoing threats exist (such as responding to a kidnapping) are covered by the emergency exception.
- Foreign Recruitment: Defenders of the status quo cited limited cases in which queries helped the government discover suspicious foreign contacts, assisting the government in investigating whether the U.S. person was a foreign target or foreign agent. But because metadata queries are exempt, a warrant rule would not inhibit the government’s ability to identify these contacts. The government has never shown a single instance in which content queries were critical to advancing an investigation against a foreign agent. Notably the two independent reviews of FISA 702 conducted only cite one single instance when a queried individual was later discovered to be a nefarious actor, and this discovery was the product of an “independent investigation” for which the government successfully obtained a warrant
MYTH #2: Warrants are not feasible given the scale of U.S. person queries conducted; adding this rule would overwhelm intelligence agencies and the courts.
REALITY: By permitting warrantless metadata queries, the warrant rule ensures the government will not need to go to court frequently.
The FBI claims that in 2025 it conducted 7,413 queries. However, most of these queries do not produce responsive results. The FBI stated that in 2025 28% queries produced content or metadata; metadata will not require a warrant to access and the hit rate for content is much lower. According to most recently available data, only 1.58% of the FBI’s U.S. person queries resulted in personnel accessing content, according to the FBI.
If queries were conducted at the prior rate of 7,413 annually and at the prior “hit rate” of 1.58% for content, a warrant would only be required an estimated 117 times per year, an average of less than 3 per week. Even at the 28% rate — a significant overcount for assessing this issue as it includes metadata results that do not require a warrant — the hit rate is less than 6 per day on average. And these numbers will be significantly reduced as many would fall under one of the exceptions to the warrant requirement described above.
MYTH #3: U.S. person queries need to be done quickly, and a warrant rule would slow the process down in a manner that endangers Americans’ lives.
REALITY: The government has never shown queries provide time-sensitive responses, and the warrant rule’s exceptions account for such a scenario if it ever did emerge.
A common argument against surveillance reform is the “ticking time bomb” hypothetical in which there simply isn’t time to abide by due process and obtain court approval. But the government has never shown a situation in which query results were needed so quickly that obtaining a warrant would be infeasible. If a time-sensitive emergency ever did occur, the warrant rule explicitly accounts for it by including an exception for exigent circumstances. Contrary to this complaint’s framing, the government has indicated that query results are used primarily during the early stages of investigations, or with queries run on targeted victims–in which cases the consent exception makes a warrant unnecessary.