“Certainly, the Court can imagine situations in which obtaining an order could defeat the purpose of the consultation, particularly when the exigency requires immediate consultation,” DeArcy Hall wrote. “This is why the Court does not hold that viewing information acquired through Section 702 always requires a court order.”
Ruling renews calls for reforms 702
While digital rights groups like the EFF and the American Civil Liberties Union (ACLU) applauded the ruling for 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 hopes that DeArcy Hall’s ruling may spark a sea change.
“In light of this ruling, we call on Congress to fulfill its responsibility to protect civil rights and liberties by refusing to renew Section 702 absent a series of necessary reforms, including a requirement for official authorization to view data on American persons and greater transparency,” the document said. EFF wrote in a blog.
A warrant requirement could actually help put an end to backdoor searches, the EFF suggested, and ensure “that the intelligence community does not continue to trample constitutionally protected rights to private communications.”
The ACLU warned that the 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, deputy director of the ACLU’s National Security Project, called 702 “one of the most abused FISA provisions.”
“As the court recognized, the FBI’s rampant digital searches of Americans are an immense invasion of privacy and trigger fundamental protections of the Fourth Amendment,” Toomey said. “Section 702 is long overdue for Congress to reform, and this opinion shows why.”