The Contentious Surveillance Law Making Waves in Washington

Lawmakers in Washington are at loggerheads over proposals to renew the government’s ability to wiretap the communications of foreign citizens in what is shaping up to be a showdown between privacy rights advocates and those who want to maintain or expand U.S. surveillance capabilities.

Section 702 of the Foreign Intelligence Surveillance Act (FISA), a powerful piece of legislation that grants intelligence agencies broad authority to scrutinize the private communications of foreign citizens, is set to expire at the end of the year. Two competing bills have been put forward by the House Intelligence and Judiciary committees to renew the government’s overseas surveillance capabilities, but with very different objectives. A proposal to temporarily extend the provision until April through the must-pass National Defense Authorization Act (NDAA) has also been slammed by lawmakers on both sides of the aisle and advocacy groups, including the American Civil Liberties Union and the Brennan Center for Justice.

The controversial law has become one of the biggest sticking points in a legislative agenda that Congress is rushing to pass before the end of the year and faces an uphill battle—much to the consternation of the White House and the intelligence community, which has repeatedly called for it to be renewed.

Here’s what you need to know.

What is Section 702?

Introduced in 2008 as an amendment to the 1978-enacted FISA, Section 702 stemmed from a post-9/11 desire to address terrorist groups’ and U.S. adversaries’ use of technology to communicate, as well as what the U.S. Office of the Director of National Intelligence described as a “collection gap” that made it harder to track and thwart attacks on the United States.

The amendment empowered U.S. intelligence agencies such as the CIA and National Security Agency (NSA) to surveil non-U.S. citizens located overseas without a warrant or court order, using procedures and targeting approved by a body called the Foreign Intelligence Surveillance Court (FISC). Over the years, its use has expanded to include cybercrime, drug trafficking, and technological theft.

Section 702 is subject to renewal every five years, was reauthorized by Congress in 2013 and 2018, and is currently in force until Dec. 31.

Why is it important?

The intelligence community and the White House have spent much of the past year publicly emphasizing the importance of Section 702 and warning of the dangers of letting it lapse or diluting its power. U.S. officials have previously highlighted the provision’s role in thwarting terror attacks, including a planned al-Qaeda attack on the New York City subway in 2009, as well as in helping to bring about the assassination of the group’s leader, Ayman al-Zawahiri, in Kabul in 2022.

According to Office of the Director of National Intelligence, almost 60 percent of U.S. President Joe Biden’s daily briefings in 2022 contained information obtained by the NSA using Section 702.

“Thanks to intelligence obtained under this authority, the United States has been able to understand and respond to threats posed by the People’s Republic of China, rally the world against Russian atrocities in Ukraine, locate and eliminate terrorists intent on causing harm to America, enable the disruption of fentanyl trafficking, mitigate the Colonial Pipeline ransomware attack, and much more,” National Security Advisor Jake Sullivan and Deputy National Security Advisor Jon Finer wrote in July, echoing a conclusion from the Presidential Intelligence Advisory Board that a failure to reauthorize Section 702 would be “one of the worst intelligence failures of our time.”

It’s not just current officials beating the drum. In a letter to House leadership on Monday, more than 40 former intelligence officials threw their weight behind the Intelligence Committee’s version, slamming the rival Judiciary Committee proposal—which would require law enforcement agencies to obtain probable cause warrants to collect data—as “seriously flawed.”

“Losing important 702 collection by acting on suggestions from some well-meaning, but ill-advised and highly vocal advocates could be a catastrophic blow to American national security,” said Andrew Borene, a former national security official who signed the letter. “These complex missions are made hard enough by our adversaries, we don’t need to make it harder for our services with self-inflicted wounds.”

Why is it controversial?

Critics of the current law have long pointed out that vast amounts of data on U.S. citizens is also hoovered up by intelligence agencies, with more than 50 House lawmakers from both parties saying in a November letter to congressional leadership that the law “has a history of abuse.”

While the law only allows collection of communications from non-U.S. citizens who don’t reside on U.S. soil, those communications may sometimes be with U.S. citizens. While Section 702 requires collection of data on U.S. citizens and residents to be minimized, it allows for some exceptions. “If, for example, a foreign terrorist indicated that a United States person was a key member of an ongoing terrorist plot, this information would be appropriately shared to allow the FBI to take further investigative steps,” the intelligence community said in a briefing document on Section 702.

Lawmakers and advocacy groups say the power has been repeatedly misused. Law enforcement agencies have used Section 702 authority to conduct searches on American protesters and activists, journalists, a sitting U.S. congressman, and a senator.

“Americans know they don’t have to sacrifice their liberty to have security,” said Democratic Sen. Ron Wyden—who has been vocal about his issues with the provision and co-introduced a separate bipartisan, bicameral reform bill called the Government Surveillance Reform Act in early November—in a statement. “I cannot support reauthorizing warrantless surveillance of Americans’ communications without significant reforms and improvements.”

What happens next?

It’s all still up in the air in Congress. An effort to put the two dueling Section 702 reform bills to a floor vote in the House on Tuesday reportedly fell apart, and neither is now expected to be voted on this week.

The NDAA, which is expected to be voted on Thursday, still contains a provision to extend the authority until April, kicking the can farther down the road to make a decision on how to reform it. Some experts and critics argue that it would actually lock in the authority until 2025, because the FISC that approves surveillance requests will have made its annual determinations by then.

“In practice, the four-month extension is actually a sixteen-month extension,” Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote in a post on X, formerly Twitter. “That’s because the government operates Section 702 programs pursuant to year-long authorizations granted by the FISA Court. The law states that these authorizations remain in effect until they expire, even if Section 702 itself sunsets.” Technically, Goitein and other experts say, the current slate of Section 702 authorizations would remain in place till April 2024 even without a formal extension.

No matter what happens, the intelligence community says that allowing Section 702 to lapse would have a disastrous impact.

It is “the most important authority we utilize today,” Gen. Paul Nakasone, the head of U.S. Cyber Command and director of the NSA, told Foreign Policy in an interview earlier this month on the sidelines of the Reagan National Defense Forum in California. “If it was to go away, it would have a dramatic effect on our national security.”