The Warrant Exception that Isn't: FISA Section 702, "Defensive" Searches, and the Fourth Amendment

As this article argues, the Fourth Amendment has no “victim” exception. In the domestic criminal context, law enforcement officers are expected to obtain a warrant (or have some constitutionally reasonable basis for not obtaining one) prior to searching protected information to identify victims of a crime or criminal plot. That the government conducts searches of its Section 702 holdings to identify victims does not excuse its failure to obtain a warrant prior to conducting such searches. Nor do traditional exceptions to the warrant requirement apply. Accordingly, Congress should close the backdoor search loophole, including for defensive searches, and require the government to obtain a warrant prior to searching for Americans in any of its foreign intelligence holdings that were obtained without a warrant.