Boasberg Compels Disclosure of FISA Noncompliance Incident Records

Patrick G. Eddington

The periodic fight over the fate of the scandal-ridden Section 702 mass electronic surveillance program of the Foreign Intelligence Surveillance Act (FISA) intensified this week. 

Yesterday, House Speaker Mike Johnson (R‑LA) announced that he would schedule a vote the week of March 23. Today, and in direct response to a long-running Cato Institute Freedom of Information Act (FOIA) lawsuit seeking FISA Section 702 noncompliance incident records, federal Judge James Boasberg ordered the Trump Justice Department (DoJ) to produce the records at issue no later than April 10. 

At the moment, only the DoJ, the FBI, and perhaps the FISA Court know what’s in these records and the extent to which the FISA Section 702 authority—which was radically expanded via its reauthorization in 2024—has been abused over the past two years. Section 702 of FISA authorizes the NSA to warrantlessly collect communications of non-US persons located abroad. The statute’s defenders have always emphasized that it is not directed at Americans. That reassurance elides the fact that when an American communicates with a foreign person whose communications are being collected, the American’s side of the conversation is captured too. 

Dubbed “incidental collection,” the practice is not incidental but a predictable, systematic, and—from the government’s perspective—valuable byproduct of the program.

Those incidentally collected American communications are retained in NSA databases for years and are warrantlessly searchable by the FBI through what critics have long called the “backdoor search” loophole. The Foreign Intelligence Surveillance Court (FISC) and multiple congressional oversight reports have documented thousands of such searches annually, many involving wholly domestic criminal investigations with no foreign intelligence nexus. One question that’s never been addressed is the extent to which the FISA Section 702 program may violate the Second Amendment rights of U.S. citizens.

When Americans buy a Glock pistol, a Beretta shotgun, or a box of Czech-made Sellier & Bellot ammunition at their local gun store, they likely assume the transaction is between them, the dealer, and perhaps the ATF’s background check system. What they almost certainly don’t know is that the business communications underpinning that entire supply chain—every email, phone call, and text between US importers and their foreign suppliers—is almost certainly being vacuumed up and stored under the Section 702 program. 

The Arms and Ammunition Supply Chain and Section 702

A substantial portion of handguns, rifles, and ammunition sold legally in the United States originates overseas. Austria’s Glock, Italy’s Beretta and Fiocchi, Germany’s Heckler & Koch and SIG Sauer, Brazil’s CBC/​Magtech, the Czech Republic’s Sellier & Bellot and CZ—these are not fringe suppliers. These companies’ US operations require constant communication with their foreign parent companies, manufacturing facilities, and logistics partners to handle purchase orders, compliance certifications, export license discussions, technical specifications, and inventory management.

Every one of those communications is potentially “incidentally collected” under Section 702 if the NSA has targeted the telecommunications infrastructure of a foreign nation. Given that the arms and defense industrial sector sits at the intersection of national security, dual-use technology, and foreign intelligence concerns, the targeting assumption is not paranoid. It is straightforward.

The Shadow Registry Problem

Congress has been unambiguous, if not always consistent, about federal firearms registries: it doesn’t want one. The Firearm Owners Protection Act of 1986 explicitly prohibits the establishment of any system for the registration of firearms or firearm owners. Section 702’s incidental collection of arms industry communications creates precisely the functional equivalent of what FOPA prohibits, at a level of commercial granularity that a formal registry might never achieve.

Aggregated communications between importers and foreign suppliers can reveal not merely which firearms are being imported in bulk, but also by whom, for which distributors, and destined for which regional markets—a supply-chain map that, correlated with commercial sales data, could reconstruct the rough contours of civilian firearms ownership at a level of detail that would make any registry administrator envious.

The government has not disclosed whether such an aggregated analysis has ever been conducted or contemplated. 

The Path Forward

The most significant obstacle to challenging this surveillance nexus is the one that plagues all Section 702 litigation: standing. Since the Supreme Court’s 2013 ruling in Clapper v. Amnesty International, plaintiffs must demonstrate that their injury is “certainly impending”—a demanding standard the Court applied to reject a challenge by lawyers and human rights organizations who communicated regularly with likely 702 targets. Because the government will neither confirm nor deny whether any particular party’s communications have been collected, would-be challengers face a structural Catch-22: the proof needed to satisfy the standing requirement is precisely the information the government classifies and refuses to disclose. That asymmetry has insulated Section 702 from meaningful judicial review for over a decade.

But the wall has cracks. FOIA litigation is one tool for forcing at least partial disclosure—as the Cato Institute’s ongoing case against the FBI demonstrates. The most tractable legal challenge on the Second Amendment front may be statutory rather than constitutional: arguing that the retention and searchability of arms industry communications violates FOPA’s registry prohibition—a concrete, domestic-law claim that does not require proving the contents of classified targeting orders. Organizations like Gun Owners of America and the Second Amendment Foundation have the litigation infrastructure and constitutional vision to pursue it. What they need is the will to look in an unfamiliar direction.

The Second Amendment community has rightly focused on regulatory overreach at the ATF and legislative threats in Congress. But the surveillance state poses a quieter, more structurally embedded threat to the right to keep and bear arms—one that operates not through prohibition but through the slow accumulation of commercial intelligence about an industry that the Constitution explicitly protects. It is past time to name that threat and challenge it.

Source: https://www.cato.org/blog/boasberg-compels-disclosure-fisa-noncompliance-incident-records