Most of us had never heard of the Foreign Intelligence Surveillance Act of 1978 (FISA) until sometime after September 11, 2001, even though the act has been around since, well, 1978, when President Jimmy Carter signed it into law.
After 9/11, the George W. Bush administration greatly expanded its intelligence-gathering activities, including both domestic and foreign surveillance and wiretapping, mostly without going through the FISA process. After those activities came under public scrutiny in 2008, Congress passed FISA’s Section 702 in order to codify the Bush administration’s activities and provide congressional and judicial oversight. It was reauthorized in 2012, and again in 2018. Now Section 702 is back in the news as Congress weighs its reauthorization. With the statute set to expire December 31, 2023, Congress was unable to pass a longer-term reauthorization, instead passing a short-term reauthorization. It’s now set to sunset April 19, 2024, unless lawmakers renew it a third time.
What powers does Section 702 grant?
Section 702 can be found in 50 U.S.C. § 1881, if you’re inclined to read the actual statute. Section 702 gives our intelligence agencies the authority to collect communications of foreign powers and agents of foreign powers located outside the United States. The statute specifically prohibits targeted collection, whether directly or indirectly, of communications of anyone known to be located inside the United States, or of any United States citizen, even if that citizen is located outside the United States. The government is also prohibited from targeting a foreign person abroad for the purpose of learning about an American.
Section 702 allows intelligence gathering on non-U.S. citizens outside the U.S. without a specific warrant. Instead, the attorney general and the director of national intelligence must submit certifications to the Foreign Intelligence Surveillance Court (FISC) annually demonstrating proper use of Section 702 powers and specifying categories of intelligence it can be used to collect. The FISC reviews and approves these Section 702 certifications, which must generally comply with the requirements of the Fourth Amendment.
Once the data—again, primarily communications—is collected (usually by the National Security Agency), that information is stored in a giant database. Then the various intelligence agencies can run searches against that database to find the particular information they need. It is important to note, however, that the database may be used only for national security purposes, and that, absent exigent circumstances (i.e threat to life or serious bodily harm), no law enforcement agency, including the FBI, may run searches against the database for domestic criminal investigative purposes without a specific court order.
One of the sticking points with Section 702 is the incidental but unavoidable collection of communications involving United States citizens, whether located within or outside the United States. Consider the scenario of a U.S. citizen communicating (via phone, email, text, or other method) with a foreign national located outside the country who is a subject of surveillance under FISA. Even though the surveillance target is a foreign national, the communications with the U.S. citizen will necessarily get “swept up” with all the other data. The FISA statute provides for procedures intended to minimize the collection, retention, sharing, and use of those types of communications.
The Section 702 program is reviewed periodically (annually by Congress, more often by the intelligence agencies and the courts) to ensure that the FISA program is being implemented in a way that protects the individual liberties of U.S. citizens to the maximum extent possible.
The sticking point: balancing national security and civil liberties.
Section 702 has been a heavy hammer in the counterterrorism arsenal. According to Director of National Intelligence Avril Haines, 59 percent of the president’s daily briefs include information attributable to Section 702. Federal law enforcement and intelligence agencies, including the FBI, Department of Justice, CIA, and the NSA, contend that Section 702 has been key to identifying the strategic intentions of foreign governments, preventing significant terrorist plots, learning about espionage plots to obtain sensitive information and technology, preventing weapon components from reaching hostile foreign actors, identifying threats to U.S. troops, uncovering evasion of U.S. sanctions, disrupting kidnappings, preventing assassination attempts, and identifying and preventing cyberattacks on critical infrastructure. Case in point: Section 702 information contributed to the drone strike that killed al-Qaeda leader Ayman al-Zawahiri in 2022.
That’s not to say that there are no potential problems and abuses of the FISA program, including (but not limited to) Section 702. The obvious challenge with any government surveillance program is achieving the proper balance between national security interests and the individual liberties of U.S. citizens, and Section 702 is no exception. The concern does not lie with those targeted for surveillance, because as non-U.S. persons located outside the United States, they have no constitutional (specifically Fourth Amendment) rights. The concern is for the constitutional rights of U.S. citizens who, although not targeted, have their communications incidentally swept up due to their communications with foreign persons.
Although the program has substantial safeguards built in to prevent the violation of the civil rights of U.S. citizens, we saw how the FISA program can be abused when Department of Justice Inspector General Michael E. Horowitz, in a 2019 report, found 17 inaccuracies, errors, and omissions in FISA applications submitted by the FBI related to surveillance of Carter Page, an adviser to Donald Trump’s 2016 presidential campaign, including submission of a materially altered email and omission of exculpatory evidence. (The warrants pertaining to the surveillance of Page, a U.S. citizen, were issued under a different section of FISA, not Section 702, but the relevant concerns still apply). Further, a report by the FISC in April 2022 revealed that the FBI misused Section 702 nearly 280,000 times from 2020 to 2021 in order to collect information on crime victims, January 6 rioters, Black Lives Matter protesters, and donors to a congressional candidate.
Horowitz concluded that the FBI’s conduct in the Page case “represent[s] serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications.” The problem is not so much statutory as the need for management personnel of investigatory agencies to follow the existing protocols and safeguards.
What institutional reforms are under consideration?
The solution to eliminating the misuse of FISA could involve both civil and criminal ramifications. Government officials who submit provably false information on FISA applications should have their employment terminated, and should be subject to §1983 lawsuits for violation of the target’s civil rights. And remember, those applications are submitted under oath. Criminal penalties already exist for perjury, as evidenced by the 2020 guilty plea of Kevin Clinesmith, the FBI attorney who altered an email submitted in support of the Page warrant application. For infractions that are unintentional, the solution could be increased training and employment sanctions.
The Department of Justice and the FBI have already taken steps to improve the FBI’s compliance with FISA protocols. In 2020 the FBI established an Office of Internal Auditing and implemented a “three-strike” accountability system for employees who violate FISA policies and protocols. Such in-house reforms have proven successful thus far, reducing U.S. citizen searches by 93 percent and increasing compliant searches to 96 percent in 2022.
Congress also took steps to address concerns in 2020 by amending the FISA statute to provide for an advocate to argue against the requested surveillance to be considered by the court, new criminal penalties for officials who make false representations to the court, and a provision requiring the attorney general to approve any proposed surveillance of federal officials or political candidates.
What reforms could Congress implement?
Despite these reforms, members of both political parties have expressed concerns regarding renewal of Section 702. Many voted against renewal in 2018, and its reauthorization next month by the current Congress isn’t assured, primarily due to past abuses of the database by the FBI . A “base bill” currently under consideration includes some additional safeguards, including 1) requiring an FBI supervisor or attorney to approve every search for information on U.S. citizens (with an exception for exigent circumstances as noted above); 2) requiring the FBI director to notify members of Congress if the agency uses the program to search their name; and 3) requiring the DOJ inspector general to report on the FBI’s Section 702 compliance. But some in Congress don’t think this goes far enough and are pushing for additional reforms, such as increased judicial involvement,such as requiring submission of a second warrant application to FISC in order for the FBI to access Americans’ communications swept up in the 702 database even in a national security context (as opposed to law enforcement investigations, where a second warrant is already required).
In the end, the reauthorization of Section 702 could turn on how intelligence gathered under the statute is used by the FBI as much as its vital importance to national security. Balancing civil rights and national security is, essentially, a zero-sum calculation. Congress will weigh whether the DOJ and other intelligence agencies have learned from their mistakes and whether the added safeguards will ensure proper agency implementation.
Correction, March 28, 2024: This piece was updated to correct references to warrants obtained to conduct surveillance under Section 702. While warrants are needed under other parts of the FISA law, such as surveillance of U.S. citizens, the Foreign Intelligence Surveillance Court grants intelligence agencies broad certifications allowing surveillance of foreign nationals outside the U.S. under Section 702.
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