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The SAFE Act – Q & A

Requirement of a Probable Cause Order to Access U.S. Persons’ Communications
Q. What are “backdoor searches”?
A. Section 702 authorizes warrantless surveillance and so it can only be targeted at foreigners
outside the United States. But it inevitably sweeps in Americans’ communications. To protect
Americans’ constitutional rights, Congress directed the government to “minimize” the
retention and use of this information. Instead, intelligence agencies routinely run electronic
queries of Section 702 data for the express purpose of finding and reviewing Americans’ phone
calls, text messages, and emails. The FBI performed 200,000 of these warrantless “backdoor
searches” in 2022 alone.
Q. What are some of the abuses that have resulted from this practice?
A. In recent years, the FBI has engaged in what the FISA Court called “persistent and widespread”
violations of the internal rules governing backdoor searches. Violations include searches for
the communications of members of Congress; multiple U.S. government officials, journalists,
and political commentators; more than 19,000 donors to a congressional campaign; and “tens
of thousands” of Americans engaged in “civil unrest,” including racial justice protesters.
Q. Didn’t the FBI’s recent procedural changes put a stop to these violations and abuses?
A. No. The intelligence community cites only the percentage drop in violations in the hope of
obfuscating the massive quantity of improper queries that are continuing to occur. According
to the government’s own numbers, violations are continuing to occur at a rate of 4,000 per
year. And flagrant abuses are still happening, such as searches for the communications of a
U.S. Senator, a state senator, and a state court judge who contacted the FBI to report civil rights
violations by a local police chief.
Q. How does the SAFE Act address these problems?
A. The SAFE Act allows intelligence agencies to search Section 702 data for Americans’
communications without any court order, but if the search returns results (which happens in
less than two percent of cases), the agencies must obtain a warrant or FISA Title I order before
accessing the content of the communications. This requirement includes exceptions for exigent
circumstances, consent (in cases where the subject of the search is a potential victim of a
foreign plot), and certain cybersecurity-related searches. It also permits queries for metadata
without any court approval.
Q. Would this warrant requirement jeopardize national security?
A. No. While the ability to collect and review foreigners’ communications under Section 702
provides significant national security value, the Privacy and Civil Liberties Oversight Board
(PCLOB), after an extensive review, concluded that the government had provided “little
justification … on the relative value of the close to 5 million [backdoor] searches conducted
by the FBI from 2019 to 2022.” In the few instances in which backdoor searches proved useful,
the Chair of the PCLOB observed that the government either would have been able to get a
warrant or could have invoked one of the exceptions in the SAFE Act.

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Q. The administration says that a warrant requirement “reflects a lack of understanding
about how these queries work,” because the government “almost never” has probable
cause when it conducts these searches. Isn’t that a good argument against requiring a
warrant?
A. Contrary to the administration’s claim, the SAFE Act’s sponsors fully understand that the
government is routinely examining Americans’ private communications without anything
approaching probable cause. That’s exactly why the SAFE Act includes a warrant requirement:
to end this violation of Americans’ constitutional rights.
Q. The administration says that the exception for situations involving “imminent death or
serious bodily harm” will “rarely” apply. Is that true?
A. We hope so! But those are also the cases in which it is most vital that the government have
quick access to information. An exception is hardly meaningless because it applies in the rare
instance where it could prevent imminent harm. Indeed, courts have long recognized the vital
importance of an “exigent circumstances” exception to the Fourth Amendment, and the SAFE
Act—far from imposing an impossible standard—mirrors the exception courts have adopted.
Q. How does the exception for “consent” work?
A. In cases where the subject of the query is a potential victim of a foreign plot, the government
can perform the query with that person’s consent. The administration suggests that obtaining
consent could take too long in situations where there is a rapidly unfolding threat. If the threat
is sufficiently severe, however, the government could invoke the exigent circumstances
exception. Moreover, nothing prevents the government from obtaining advance consent from
a list of high-risk targets of espionage (e.g., high-ranking officials) or cyberattacks (e.g.,
providers of critical infrastructure). Again, the idea of a consent exception is not a radical and
untested notion; it is standard practice under the Fourth Amendment, and law enforcement
agencies regularly take advantage of it.
Q. What if, as the administration says, “it is often not clear whether the person is a victim
or perpetrator of malicious activity?”
A. In such cases, the person is a potential suspect, and the query results could become the primary
basis to prosecute them. This is precisely the scenario in which the government should be
required seek a warrant. If the government lacks probable cause and no exigent circumstances
exist, it should not be reading an American’s private communications.
Q. How does the SAFE Act accommodate the need to protect against cyberattacks?
A. There are four exceptions that together provide the government with ample power to quickly
conduct queries and obtain needed information to discover and respond to potential
cyberattacks. First, the bill does not require any warrant or court approval to conduct metadata
queries. This is essential for cybersecurity because, as the government itself has highlighted,
its use of U.S. person queries in the cyber context has focused on tracing network traffic and
suspicious internet contact efforts. Second, the bill provides a direct exception for queries
focused on malware code, which will cover many types of cyberattacks (e.g., exploitation of
zero-day vulnerabilities). Third, for spear phishing and denial of service attacks, the
government can obtain consent from potential victims (including advance consent from a list

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 of high-risk targets, as noted above). And fourth, where an attack may have imminent kinetic
effects (e.g., attacks targeting hospitals or critical infrastructure), the government may invoke
the “exigent circumstances” exception.
Q. The bill’s warrant requirement applies not just to U.S. persons (American citizens and
legal permanent residents), but others inside the United States. Why is that? And is the
administration correct that this would prevent the FBI from running a query if it learned
that “an individual with connections to a major international terrorist organization had
just arrived at JFK airport”?
A. FISA itself requires the government to obtain a probable cause order if it wants to conduct
electronic surveillance of either a U.S. person or a person inside the United States. The SAFE
Act’s requirement is scoped to FISA to ensure that backdoor searches cannot be used to evade
FISA’s protections. While critically important, those protections are not overly demanding
when it comes to non-U.S. persons: If the FBI can show that someone has “connections to a
major international terrorist organization,” it can certainly obtain a court order under Title I of
FISA, and would therefore be able query the Section 702 data under the SAFE Act.
Q. Why should the government need a warrant to search lawfully collected information?
A. What renders warrantless surveillance under Section 702 “lawful” is the government’s
certification that it is targeting only foreigners abroad. Queries that target U.S. persons turn
this premise on its head. Moreover, as the Second Circuit noted in this very context, “[L]awful
collection alone is not always enough to justify a future search.” That case is still ongoing, but
the court clearly cast doubt on the constitutionality of warrantless U.S. person queries.
Reforms to limit government purchases of Americans’ sensitive data from data brokers
Q. What problem do these reforms seek to solve?
A. Government agencies are increasingly using data brokers to evade constitutional and statutory
privacy protections. For instance, the Supreme Court has held that the government needs a
warrant to obtain cell phone location information, because this data can reveal highly sensitive
information about a person’s associations, habits, and even beliefs. But the government
interprets this ruling to apply only when it compels the production of information, not when it
pays for the data. Federal agencies are thus buying up massive databases of this Fourth
Amendment-protected information without any legal process whatsoever, let alone probable
cause and a warrant.
Q. How would the SAFE Act address this problem?
A. The SAFE Act prohibits law enforcement and intelligence agencies from purchasing
Americans’ data if they would otherwise need a warrant, court order, or subpoena to obtain it.
It does not apply to information a person has made public (such as public-facing social media
posts), information available through widely distributed media (such as newspapers), or
information available from public records. It also has several exceptions, including for
emergencies and for certain critical government functions. And if the government is unable to
identify and exclude Americans’ data from larger data sets, it allows the government to
purchase the data set and then apply minimization procedures post-purchase.

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Q. Why do these reforms belong on a bill to reauthorize Section 702?
A. The backdoor search loophole and the data broker loophole are two of the government’s largest
sources of warrantless access to Americans’ Fourth Amendment-protected information. If
Congress reforms Section 702 in isolation, the government will simply increase its reliance on
data broker purchases. Achieving the underlying goal of Section 702 reform thus requires
addressing both of these problems together.
Q. The administration says that “there is often no way to establish even a ‘reasonable belief’
of whether a particular individual was inside the United States at the time a particular
piece of data was created.” Doesn’t that make the SAFE Act’s reforms unworkable?
A. That’s exactly why the SAFE Act allows the government to “overcollect” in cases where it
cannot establish whether a given data set includes protected information. If the government
later determines that information relates to a person inside the United States, it must purge the
data unless one of several exceptions applies.
Q. The administration also argues that these reforms would “significantly limit the
government’s acquisition of all frontier AI systems (e.g. large language models).” Is that
a serious concern?
A. The SAFE Act will have no effect on the government’s acquisition of large language AI models
that draw from open sources. Many AI models are trained on data from the Internet that would
not qualify as protected data under the SAFE Act. If, however, the government seeks to acquire
AI systems that ingest Americans’ private, Fourth Amendment-protected data, that is
extremely concerning and only underscores the need for this legislation.
Q. The SAFE Act imposes restrictions on government acquisition of Americans’ personal
data that do not apply to private companies. Why make that distinction?
A. Congress can and should consider legislation to more broadly protect the privacy of
Americans’ data. However, government collection of Americans’ personal information is
uniquely problematic. The government has a wide range of coercive powers over the American
people that private companies simply don’t have, including the power to investigate, arrest,
jail, deport, tax, audit, and fine. That is why the Fourth Amendment applies to the government
and not to private actors.
Q. Won’t foreign governments, such as those of China, Russia, or Iran, still be able to
purchase this data?
A. As the administration points out, it is in the process of developing regulations to “prevent the
large-scale transfer of Americans’ sensitive personal data to countries of concern.” Congress
is working to rapidly advance legislation that would do the same; last month the House passed
the Protecting Americans’ Data from Foreign Adversaries Act by a 414-0 vote. In the
meantime, the fact that China does not respect Americans’ privacy rights is no reason for our
own government to show the same disrespect. We should not emulate the Chinese government
when it comes to upholding basic freedoms, including freedom from unwarranted government
scrutiny. We hold the U.S. government to a higher standard, and rightly so.
ACLU • Brennan Center for Justice • Center for Democracy & Technology • Demand Progress • Electronic
Privacy Information Center • FreedomWorks • Project for Privacy and Surveillance Accountability