'Defensive' Search Is Not a Recognized Exception to the Warrant Requirement … Yet

The 4th Amendment protects US citizens from unlawful searches. However, this right has limitations, for example, when the subject of the investigation involves a matter of national security. 

Warrantless searches are provisions under Section 702 of the Foreign Intelligence Surveillance Act (FISA) that are applied in investigations into national security matters. However, due to their sensitivity and potential abuse, these provisions have always been the center of heated debate over the years.

Hardline Positions

This section of the law has in the past been applied in various cases, but recent querying of communications relating to a member of Congress has ignited concerns about this provision of the law being abused for political purposes. 

These concerns have increased significantly after 2020, mainly due to the hardline stances on both ends of the political spectrum around January 6th and the ongoing investigation. 

"In the ongoing debate surrounding warrantless defensive searches, it's imperative to strike a balance between national security concerns and safeguarding individual rights as enshrined in the Fourth Amendment,” says attorney Omeed Berenjian of BK Law Group.

Proponents' Arguments and Their Shortfalls

Proponents of warrantless defensive searches argue that they are essential for national security. According to them, the ability of the FBI and other investigative agencies to access a vast pool of private conversations is critical for rooting out criminal activity without going through the cumbersome process of getting warrants for searches. 

But a little digging into history will show such a move is not always the best because it is prone to abuse and being used to spy on dissenting voices. The searches have been used countless times in the past six decades to crack down on some innocent individuals under the pretext of national security threats. 

One prime example is the FBI's unlawful monitoring of Martin Luther King Jr., influenced by J. Edgar Hoover's personal vendetta against King. Under Hoover's leadership, the FBI wire-tapped King's phones and bugged his hotel rooms for claims of Soviet influence, with the main agenda being to discredit him and disrupt the civil rights movement. 

Split Warrant Standards

Under normal circumstances, law enforcement agencies must show probable cause to obtain a warrant for electronic communication searches. However, the same does not apply to elected leaders, members of the press, or religious leaders. Law enforcement only needs reasonable suspicion of criminal activity. 

Given these provisions, proponents of warrantless defensive searches suggest that these groups receive enhanced protections. However, enhanced protection for some groups would mean overlooking the federal government's history of targeting ordinary Americans who don't fall into these categories. 

Rights As Critical as National Security

Undoubtedly, the warrantless defensive search provision under Section 702 of the Constitution is critical in empowering investigative agencies. However, it is equally important to protect the rights of the American citizenry as enshrined in the Fourth Amendment. 

A warrant should always be a prerequisite before an investigative agency can look at private communications if Americans will continue enjoying the freedoms they have enjoyed for decades. This should be regardless of the motive or the claims leveled against the individual. 

As the debate rages on, striking a healthy balance between national security and individual privacy poses a significant challenge for law enforcement and requires thoughtful reforms to preserve democracy.