The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures and requires that warrants be issued only upon probable cause and supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The application of Section 702 of the Foreign Intelligence Surveillance Act (FISA) in relation to the Fourth Amendment has been a subject of debate and legal scrutiny.

On April 20th H.R. 7888, “Reforming Intelligence and Securing America Act” became public law. The bill reauthorizes Title VII of the Foreign Intelligence Surveillance Act (FISA) for another five years, while also enacting important changes under Section 702.

Section 702 of FISA is a provision that authorizes the collection of foreign intelligence information on non-U.S. persons located outside the United States, often through the surveillance of electronic communications such as emails and phone calls. It has been a key tool used by the U.S. government to monitor communications involving foreign individuals who are suspected of being involved in terrorism, espionage, or other national security threats.

Section 702 evolved in response to the changing nature of global communications and the need for intelligence agencies to adapt to new technologies and threats.

FISA was put in place due to several factors in 1978. In the 1960s and 1970s, there were revelations of various government surveillance programs targeting political activists, civil rights leaders, and other individuals deemed as dissenters. One notable example was the FBI's COINTELPRO program, which targeted domestic groups perceived as subversive. These revelations raised concerns about the potential for government overreach and violations of civil liberties.

After Watergate and some other abuses of power in government, the Church Committee began investigating intelligence activities of the CIA and FBI. Starting in 1975 the committee would highlight numerous instances of illegal and/or improper surveillance of individuals that needed immense oversight. FISA aimed to strike a balance between national security and safeguarding individual rights.

After September 11th, 2001, the Government quickly enacted the Patriot Act a month later. There was a significant expansion of U.S. counterterrorism efforts, including increased surveillance activities by intelligence agencies. This quickly passed act expanded the government's surveillance powers in various ways, including the authorization of roving wiretaps and the use of National Security Letters (NSL).

The NSL has been controversial since the introduction of the Patriot Act and the 2008 renewal. The FBI no longer needed prior judicial approval, meaning they can receive customer records, transactional Dara, and other information from 3rd parties while never obtaining a warrant from a court.

In the new 2024 renewal, my guest today, Paul Engel, explains that the practice of not needing a warrant continues and is now expanded. According to his research into the new law of the land, Paul discovered a warrant was not needed, simply verbal approval from a superior. We discuss today how Americans continue to allow unlawful bills to be passed and enacted.

You can follow Paul Engel on X @cyberengel, and catch his show “The Constitution Study” on the America Out Loud News Talk Radio program.