Controversy and Change: Navigating the Reauthorization of FISA’s Section 702 Features
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Controversy and Change: Navigating the Reauthorization of FISA’s Section 702

The US House of Representatives passed a two-year reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial expiring warrantless surveillance law, earlier this year. Democrats and Republicans alike criticized the move. Former President Donald Trump urged his allies in Congress to “Kill FISA” days before the House passed the two-year reauthorization. Senator Ron Wyden (D-OR) vowed to “do everything in [his] power” to stop Congress from reauthorizing and expanding FISA Section 702. Americans are bombarded with political fireworks from both sides, so in this explainer, we will explore the basics.

What is FISA Section 702?

Section 702 is just one part of the Foreign Intelligence Surveillance Act. It grants the US government the power to tap into the communications of non-US citizens located abroad and collect their exchanges even when they communicate with Americans, all without requiring a warrant. The National Security Agency (NSA) can require email providers like Google to hand over all messages from any foreign user’s account and compel network operators like AT&T to intercept and provide records of phone calls, texts, and internet communications to or from a foreign target.

Why is this provision so controversial?

National security officials from the Federal Bureau of Investigation (FBI) and NSA have argued that Section 702 collection is crucial for acquiring foreign intelligence and counterterrorism information. But critics worry about its implications for privacy. Advocacy groups like the American Civil Liberties Union (ACLU) have urged Congress to either significantly reform Section 702 to protect Americans’ constitutional protections and expectations of privacy or let it expire.

The primary critique of Section 702 is that it permits the government to intercept Americans’ communications without a court order. Intelligence analysts can access a database of messages by using identifiers associated with Americans, such as names, Social Security numbers, passport numbers, phone numbers, and email addresses as search terms. Critics refer to these practices as a “backdoor search loophole” to the Fourth Amendment‘s privacy expectation and have consistently urged Congress to mandate the government to get a warrant before accessing Americans’ private communications. The government has been forced to disclose instances where it improperly used this tool to get information on Americans including Black Lives Matter protestors, January 6 protestors, politicians, and judges.

However, Section 702 was successful in foiling terrorist attacks. For instance, consider its role in preventing an attack on the New York subway system. In 2009, Najibullah Zazi, an Afghan national residing in Colorado, was arrested en route to New York to carry out the subway bomb plot. The critical evidence came from Zazi’s emails to an al Qaeda courier in Pakistan, where he inquired about bomb-making techniques. These emails were intercepted through a Section 702 operation, which ultimately contributed to Zazi’s arrest and his guilty plea to conspiring to detonate explosives in the US. ODNI said that “Without the initial tip-off about Zazi and his plans, which came about by monitoring an overseas foreigner under Section 702, the subway bombing plot might have succeeded.” Section 702 has also helped foreign partners to identify people responsible for the 2016 New Year’s Eve attack at an Istanbul nightclub and expose an ISIS recruiter based in Trinidad and Tobago.

A handout from the Office of the Director of National Intelligence (ODNI), for instance, emphasizes strict guidelines that govern the applicability of Section 702, including a ban on deliberately targeting US citizens or people known to be located in the US. Additionally, Section 702 cannot target an individual outside the US if its objective is to collect information from someone within the US, a procedure called “reverse targeting.” Despite these safeguards, critics have challenged Section 702’s constitutionality in court several times, most recently in 2021, but courts have consistently upheld it as constitutional.

What have the latest legislative amendments changed? 

To address privacy concerns, Section 2 of the newly passed H.R.7888 – Reforming Intelligence and Securing America Act (RISAA), amends FISA law to “strictly limit” FBI queries of unminimized information acquired under Section 702 using identifiers of US persons. Under the new law, an FBI supervisor or attorney must approve any such queries before an officer can access the FISA database. Political appointees are prohibited from approving these queries. Furthermore, only FBI personnel with access to raw FISA-acquired information — data that has not been scrutinized through minimization procedures — and who have completed mandatory training in FISA-related procedures are authorized to approve requests. A notable omission in this statute is the lack of a warrant requirement, which critics have been clamoring about.

Other changes include Section 3, which restricts the FBI from using raw Section 702 data solely for crime detection, except in urgent situations. Section 22 ends the government’s ability to engage in “abouts” collection — gathering communications that mention a target but are neither to nor from them. The government’s action would close a loophole that has been a point of contention for privacy advocates. Section 24 enhances the vetting process for non-US persons traveling to the US by explicitly allowing the use of Section 702 surveillance on these travelers. Section 5 suggests a new standard for the Foreign Intelligence Surveillance Court (FISC), proposing that it should generally consult independent experts unless there are strong reasons against it.

Readers who identify as statutory buffs may wish to check out RISAA’s changes to the fundamental definitions.

Section 23 expands the definition of “foreign intelligence information” to include the international production, distribution, or financing of specific drugs, notably those contributing to overdose deaths, such as opioids. This expansion is crucial, as the certifications and targeting decisions under Section 702 are based on acquiring foreign intelligence information.

Section 25 also broadens the definition of “Electronic Communication Service Provider” (ECSP). It extends the range of entities that the government can require to assist in collecting communications under Section 702. A “provider” now is any service provider who “has access to equipment that is being or may be used to transmit or store wire or electronic communications.” This change, which originated from a proposal by the House Select Permanent Committee on Intelligence (HPSCI), aims to adapt to changes in internet technology over the past 15 years. Despite adjustments to exclude places like restaurants and libraries, privacy advocates remain concerned that this broad definition could lead to extensive domestic surveillance. While national security hawks may claim victory for now, these changes will be up for debate again in 2026, and the Senate should take a closer look at how ECSP is defined.

Other changes relate to FISC and FISA applications including stricter verification measures to ensure the accuracy of surveillance applications and allowing certain Congress members to access FISC proceedings to enhance transparency and oversight. From the intelligence community’s perspective, these procedural changes are significant, but it will likely be some time before public reactions to them become known.

Capping off the array of reforms is a particularly intriguing mandate in Section 18(b) of the act. It instructs the Director of National Intelligence, in collaboration with NSA and in consultation with the FBI, to undertake a study on advanced technologies that could enable near-real-time monitoring of the FBI’s adherence to compliance protocols for systems storing information gathered under Section 702. The study is tasked with evaluating the costs and practicality of implementing such technological enhancements within a year.

This directive hints at the potential deployment of cutting-edge technologies, possibly even artificial intelligence, to oversee compliance. The prospect of integrating such sophisticated tools raises compelling questions about the future of surveillance oversight. Could this lead to enhanced accountability and transparency, or might it usher in new challenges and debates? Only time will tell, but the implications could be profound.