Will Section 702 become a backdoor gun registry?

OPINION:

The debate over the FISA Section 702 surveillance authority is often framed as a clash between national security and privacy. But that framing is flawed – and dangerously so.

What Congress now faces is not just a Fourth Amendment question. It is a test of whether warrantless surveillance powers could quietly erode gun rights.

A “clean” reauthorization of Section 702 – one that excludes meaningful reforms – is an implicit threat to the Second Amendment.

Section 702 was enacted to target foreign threats overseas. But in practice, it has enabled the sweeping collection of millions of Americans’ communications in recent years, often without a warrant. That alone should give Congress pause.

Yet a deeper concern is how this data, once collected, can be combined with other sources to create something Congress has explicitly forbidden: a federal registry of gun owners.

The mechanism is not hypothetical. It is already embedded in how Section 702 operates.

With many of the firearms sold in the United States manufactured abroad, the communications supporting those transactions – emails, calls and logistics data between foreign manufacturers and U.S. importers – are swept up in the National Security Agency’s global surveillance under Section 702.

What Americans assume is a private retail transaction is, in part, captured in a vast intelligence database.

Patrick Eddington of the Cato Institute has described how this creates a level of insight that could rival, or exceed, a formal gun registry. The government may not directly record your firearm purchase, but it may collect the commercial data surrounding it at “a level of commercial granularity” that achieves the same result.

Now add artificial intelligence and modern data practices to the equation.

Federal agencies are already purchasing Americans’ personal information – location data, financial records and consumer behavior – from third-party data brokers. These datasets can reveal visits to gun stores, purchases of firearms or ammunition, and patterns of lawful gun ownership.

Combine that with Section 702’s communications data, and the outlines of a comprehensive gun ownership database come into view.

No law authorizes such a registry. Congress has repeatedly prohibited it.

But technology, and the absence of guardrails, have created a sneak around.

This is why the current push for a “clean” reauthorization is so troubling. It would preserve and expand the government’s ability to collect and query Americans’ data without addressing how these authorities intersect. It would leave intact a system in which surveillance data, commercial data and artificial intelligence can be fused into a detailed map of Americans’ private lives.

And the implications go well beyond the Second Amendment.

Section 702 data can be retained for years and queried by multiple agencies. With the growing use of AI and the dismantling of traditional data silos, sensitive personal information about Americans can be rapidly analyzed and shared across the federal government from the Bureau of Alcohol, Tobacco, Firearms and Explosives to the IRS and the FBI.

The same tools that could identify gun owners could just as easily map political associations, religious affiliations or journalistic sources.

In other words, the risk is not just that the government could build a gun registry. It is that it could build a comprehensive profile of any American – without ever obtaining a warrant.

Supporters of Section 702 argue that this authority is indispensable for national security. And that’s true. The question is not whether Section 702 should exist. It is whether it should exist without basic constitutional safeguards.

Those safeguards are neither radical nor new.

At a minimum, Congress should require a warrant before the government can search for Americans’ communications in Section 702 databases. It should close the data broker loophole that allows agencies to purchase sensitive information they could not legally collect.

And it should impose stricter limits on how long data is retained and how widely it is shared.

These are not anti-security measures. They are pro-constitutional measures.

The alternative is to accept a system in which the government can do indirectly what it cannot do directly. A system in which the prohibition on a federal gun registry exists on paper, but not in practice. A system in which constitutional rights are honored in form but not in substance.

Public opinion is already moving against that outcome. Polling shows that only a small minority of Americans support reauthorizing Section 702 without reforms, while large numbers want either restrictions or an end to the program altogether.

Americans understand that surveillance powers, once expanded, are rarely rolled back. Congress should understand it too.

• Bob Goodlatte, senior policy analyst for the Project for Privacy and Surveillance Accountability, represented Virginia’s 6th District in Congress and chaired the House Judiciary Committee, and Brandon Combs is the founder and president of the Firearms Policy Coalition.