Jonah Patel
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a critical intelligence collection authority that enables the Intelligence Community (IC) to collect, analyze, and share foreign intelligence information about national security threats. While it was enacted to make it easier for the government to monitor foreign terrorists and their acquisition of weapons of mass destruction, Section 702 has been repeatedly abused to illegally spy on Americans, violating their Fourth Amendment rights and civil liberties on a wide scale. This has led to calls for reform and the introduction of bills in Congress to reauthorize Section 702 with additional safeguards to protect Americans' constitutional rights.
| Characteristics | Values |
|---|---|
| Purpose | To make it easier for the government to monitor foreign terrorists |
| Targets | Non-United States persons reasonably believed to be located outside the United States |
| Oversight | The Attorney General must approve targeting, minimization, and querying procedures, which are then annually reviewed by the Foreign Intelligence Surveillance Court (FISC) |
| Compliance | The Department of Justice and the Office of the Director of National Intelligence conduct extensive, regular, and independent reviews of Section 702 activities |
| Amendments | Congress amended Section 702 to require specific procedures to ensure querying of Section 702-acquired information is consistent with the Fourth Amendment |
| Criticism | The government has repeatedly abused Section 702 to illegally spy on Americans, violating individual rights |
| Proposed Reforms | The Protect Liberty Act, the Government Surveillance Reform Act, and other bills propose to require warrants for backdoor searches and provide protections for information acquired without a warrant |
| Court Rulings | The Second Circuit Court of Appeals and the U.S. District Court for the District of Maine have ruled that warrantless Section 702 searches violate the Fourth Amendment |
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What You'll Learn
Section 702's authorisation of targeted intelligence collection
Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted in 2008 to enable the Intelligence Community (IC) to collect, analyse, and share foreign intelligence information about national security threats. This includes information concerning international terrorism or the acquisition of weapons of mass destruction.
Section 702 authorises targeted intelligence collection of specific types of foreign intelligence information, identified by the Attorney General and the Director of National Intelligence (DNI). It is important to note that this section does not permit the targeting of United States persons or anyone located within the United States. Instead, it focuses on non-United States persons reasonably believed to be located outside the country.
Every targeting decision under Section 702 is individualised, documented, and approved through a multi-step process, with oversight from an independent team. While the section recognises that targets may communicate with United States persons, it requires specific procedures to minimise the acquisition, retention, and sharing of information related to US persons.
However, "minimise" does not equate to "eliminate". For instance, if a foreign terrorist revealed that a United States person was involved in a terrorist plot, this information would be shared with the FBI to facilitate further investigation.
Section 702 has been criticised for infringing on the President's "executive Power" and for being an unnecessary addition to the FISA statute. Despite its intended purpose of obtaining foreign intelligence, it has been used for domestic surveillance, leading to concerns about civil liberties and privacy violations.
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The law's controversial nature and abuse
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a highly controversial law that has been repeatedly criticised for enabling the abuse of power by the US government. Enacted in 2008, the law allows the Intelligence Community (IC) to collect, analyse, and share foreign intelligence information about national security threats without requiring a warrant. While it is intended to target non-US persons located outside the United States, the law has been criticised for its potential to infringe on the privacy and rights of US citizens.
One of the most significant controversies surrounding Section 702 is the issue of warrantless surveillance. The law authorises the government to collect communications from non-Americans located abroad without obtaining a warrant, which has raised concerns about the potential for abuse and invasion of privacy. In 2025, a federal district court ruled that backdoor searches of databases containing Americans' private communications under Section 702 require a warrant, finding that such searches violated the Fourth Amendment. Despite this ruling, Congress has continued to reauthorise Section 702, even in the face of evidence of abuse by the FBI and intelligence agencies.
Another concern relates to the potential for disproportionate targeting of certain groups. Critics argue that Section 702 could be used to target minority communities, political activists, journalists, and other disfavoured groups. This concern is heightened by the secrecy surrounding the program and the government's history of abusing its surveillance authorities. Additionally, there are worries that the intelligence agencies' querying procedures may result in invasive searches of non-Americans travelling to the US, even when there are no valid concerns or reasons for such searches.
The abuse of Section 702 has been well-documented. In one notable case, United States v. Hasbajrami, the government was found to have collected and searched emails between a US resident and a foreigner associated with terrorist groups without a warrant. This evidence was then used to charge the US resident with providing material support to terrorists. In addition to this, there have been instances of baseless searches for racial justice protesters, political donors, and members of Congress, further highlighting the invasive and abusive nature of the law.
While there have been calls for reform and the introduction of bills aimed at reauthorising and reforming Section 702, critics argue that these bills do not go far enough to address the abuses of power enabled by the law. Some even suggest that the bills would expand warrantless surveillance and increase the number of entities required to assist the government in conducting surveillance. As such, there are ongoing demands for significant reforms or the sunset of Section 702 to protect civil rights and liberties.
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Its incompatibility with the Fourth Amendment
Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted in 2008 to enable the Intelligence Community (IC) to collect, analyze, and share foreign intelligence information about national security threats. While it was intended to make it easier for the government to monitor foreign terrorists, Section 702 has been criticized for its incompatibility with the Fourth Amendment of the US Constitution.
The Fourth Amendment guarantees Americans the right to be free from unreasonable searches and seizures by the government. To comply with this amendment, the government typically needs to obtain a warrant before conducting searches or seizing property. However, Section 702 allows the government to collect the communications of non-Americans located abroad without a warrant, raising concerns about potential violations of the Fourth Amendment.
Critics argue that Section 702 has been abused by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, journalists, and criminal defendants. In United States v. Hasbajrami, the US District Court for the Eastern District of New York ruled that warrantless queries conducted under Section 702 violated the Fourth Amendment. This ruling followed a 2019 decision by the Second Circuit Court of Appeals, which recognized that Section 702 queries of people in the United States trigger separate Fourth Amendment scrutiny.
While Section 702 prohibits the targeting of US persons or anyone located in the United States, critics argue that the collection of US persons' information may still occur if they are in contact with a foreign target. This incidental collection has been a subject of debate, with some arguing that it violates the Fourth Amendment, while courts have upheld its constitutionality.
To address these concerns, Congress amended Section 702 to require specific procedures that ensure compliance with the Fourth Amendment. The Attorney General must approve targeting, minimization, and querying procedures, which are annually reviewed by the Foreign Intelligence Surveillance Court (FISC). However, despite these amendments, critics continue to argue that Section 702's authorization of warrantless backdoor searches is incompatible with the Fourth Amendment and enables the government to circumvent constitutional protections.
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Congressional bills for its reform
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a critical intelligence collection authority that enables the Intelligence Community (IC) to collect, analyze, and share foreign intelligence information about national security threats. While it was originally intended to make it easier for the government to monitor foreign terrorists, Section 702 has been repeatedly abused to illegally spy on Americans, violating individual rights.
Congressional bills have been introduced to reform and reauthorize Section 702. These include the Protect Liberty and End Warrantless Surveillance Act (Protect Liberty Act), the Government Surveillance Reform Act of 2023, and two separate bills confusingly named the "FISA Reform and Reauthorization Act of 2023". The Government Surveillance Reform Act includes the most comprehensive reforms and has been described as a "sweeping, bipartisan, bicameral bill that would rein in the growing ecosystem of warrantless government surveillance authorities". It would require the government to obtain a warrant before performing backdoor searches of communications content, prohibit warrantless queries of information collected under Section 702, and bolster the FISA Court safeguards in line with the Lee-Leahy amendment.
Other proposed reforms include requiring that all agencies with access to Section 702 information have robust accountability measures in place to punish misuse of surveillance authorities, prohibiting intelligence and law enforcement agencies from exploiting the Data Broker Loophole, and preventing the government from purchasing data from data brokers that would otherwise require a warrant to obtain.
However, some have criticized the intelligence committees' bills for failing to address Section 702 abuses and instead expanding warrantless surveillance. The American Civil Liberties Union (ACLU) has urged Congress to either pass fundamental reforms to the program or vote no on reauthorization. The SAFE Act has also been proposed as a bipartisan bill that may offer a realistic chance of reforming Section 702.
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The Biden administration's defence of the law
Despite acknowledging the controversial nature of Section 702, the Biden administration has defended its use. In April 2024, the Department of Justice announced that the Foreign Intelligence Surveillance Court had granted a one-year extension to the government's ability to conduct surveillance under Section 702. This was despite Congress debating reforms to the program and being poised to vote on its future.
The Biden administration's defence of Section 702 is surprising given Biden's previous stance on the law. As a senator, Biden voted against Section 702, stating that it was an "unconstitutional expansion of the President's powers" and was "wholly unnecessary". The ACLU agreed with Biden's stance and filed a lawsuit challenging the law's constitutionality.
Despite this, the Biden administration has ordered the defence of Section 702. This may be because Section 702 is intended to be used for the government to obtain foreign intelligence. However, intelligence agencies have frequently used it as a domestic surveillance tool. In 2022, the FBI conducted over 200,000 warrantless "backdoor" searches of Americans' communications. These searches allow law enforcement to access constitutionally protected communications without a warrant.
Section 702 has also been used to improperly spy on Black Lives Matter activists, January 6th suspects, and congressional campaign donors. While these actions have been criticised by members of Congress, there has been a failure to implement meaningful reforms. The intelligence committee bills introduced in Congress have been criticised for failing to address Section 702 abuses and instead expanding warrantless surveillance.
The Biden administration has yet to provide a credible example of how these searches are necessary to achieve their purpose, and there is minimal to negligible value of these searches in keeping Americans safe. The extension of Section 702 surveillance by the Biden administration has been criticised by the ACLU as a betrayal of the public's trust and an attempt to circumvent the role of Congress.
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Frequently asked questions
Section 702 is a provision of the Foreign Intelligence Surveillance Act (FISA) that allows the government to collect foreign targets' communications without a warrant, even if they are communicating with Americans.
Section 702 has been criticised for violating Americans' civil liberties and the Fourth Amendment by enabling intelligence agencies to conduct warrantless "backdoor" searches of Americans' communications. Despite being intended to target non-Americans abroad, Americans' communications are "inevitably" captured too.
Congress has introduced bills to reauthorise and reform Section 702, such as the Protect Liberty Act and the Government Surveillance Reform Act. These bills aim to prevent future abuses by requiring warrants for backdoor searches and providing greater protections for Americans' communications.
