Last week, the US Congress narrowly avoided blocking the renewal of FISA Section 702 amidst concerns that it would perpetuate the warrantless monitoring of American citizens. Despite efforts, a proposal to mandate warrants did not succeed.
FISA Section 702, a provision of the Foreign Intelligence Surveillance Act, has historically sparked debate due to its allowance for indirect surveillance of US citizens without a warrant. This led a coalition of Republican dissidents to ally with Democrats, preventing the bill that would extend this provision from reaching a vote on the House floor.
The debate over reauthorization act of FISA Section 702 highlights a critical tension between national security and individual privacy rights. By allowing warrantless surveillance of Americans, the legislation raises significant concerns about government overreach and the erosion of civil liberties. The failure to pass amendments requiring warrants underscores the ongoing challenge of balancing security needs with constitutional protections, shaping the future of surveillance policy and citizens’ rights.
What is FISA Section 702?
FISA Section 702 is “a key provision of the FISA Amendments Act of 2008 that permits the government to conduct targeted surveillance of foreign persons located outside the United States,” reads the PDF shared by the Office of the Director of National Intelligence. This provision necessitates the cooperation of electronic communication service providers to gather foreign intelligence information. The intelligence gathered under Section 702 is utilized to safeguard the United States and its allies against hostile foreign entities such as terrorists, proliferators, and spies, and it supports cybersecurity initiatives.
Under Section 702, the Intelligence Community (IC) is authorized to target non-U.S. persons who are outside the United States and are believed to hold, receive, or transmit foreign intelligence information. This targeting is crucial for national security purposes and does not extend to U.S. persons, the document reads.
The enactment of Section 702 by Congress was motivated by the need to bridge a gap in intelligence collection that emerged with advances in technology after the original FISA legislation in 1978. By the mid-2000s, terrorists and other foreign adversaries increasingly used email services provided by U.S. companies, complicating surveillance efforts. Previously, the government needed individual court orders based on probable cause to access the communications of non-U.S. persons abroad. This process was not only resource-intensive but also challenging due to the stringent probable cause standard intended to protect U.S. persons and individuals within the U.S.
Regarding restrictions under Section 702, the IC cannot target U.S. persons, regardless of their location. Additionally, any person within the U.S., and foreign individuals abroad if the purpose is to indirectly target a U.S. person or someone within the U.S. through what is often referred to as “reverse targeting,” are also off-limits for surveillance under this section. This safeguard is designed to protect the privacy and rights of U.S. nationals and residents.
About the reauthorization act
The central issue with the FISA Section 702 reauthorization act is that it formally permits the US to monitor foreign threats overseas. However, if these foreign individuals interact with Americans, the US citizens’ electronic communications may also be collected for intelligence purposes.
In a bid for reform, a bipartisan group called for a change in the reauthorization act to necessitate warrants before collecting data from Americans. Although an amendment was suggested early Friday, it initially gained support but eventually failed, allowing the Section 702 reauthorization to proceed to a vote in the House.
The proposed amendment by Andy Biggs (R-AZ), aimed at prohibiting warrantless surveillance of US persons, was not adopted following a tied vote of 212-212. This outcome ensures that US citizens communicating with foreign targets under surveillance will remain subject to warrantless surveillance. Other amendments referenced in the attached PDF, however, were approved.
The comprehensive bill to renew Section 702 surveillance, pushed swiftly through the House to avert expiration on April 19, gained approval with bipartisan backing despite widespread calls to terminate warrantless surveillance. The Senate now faces the task of passing the bill before the impending deadline of April 19, providing them with the entirety of this week to accomplish it.
Image credits: Kerem Gülen/Midjourney
