Section 702: The Future of the Biggest US Spy Program Hangs in the Balance

In the wake of 9/11, US president George W. Bush authorized the National Security Agency (NSA) to eavesdrop on Americans without court-approved warrants as part of the hunt for evidence of terrorist activity. A federal judge ruled the collection unconstitutional in 2006, as part of a lawsuit brought by the American Civil Liberties Union. (An appeals court later overturned the ruling without challenging the case’s merits.)

Rather than end the surveillance, Congress codified the program as Section 702 of the Foreign Intelligence Surveillance Act (FISA), granting itself some authority to enforce procedures ostensibly designed to limit the program’s impact on Americans’ civil liberties.

Section 702 explicitly prohibits the government from targeting Americans. The surveillance must instead focus on foreigners who are physically located overseas. Nevertheless, Americans’ communications are routinely swept up by the program.

While denying that it intentionally sets out to eavesdrop on its own citizens, once it has already done so, the US government’s position is that it now has a right to access these “legally collected” communications without a judge’s approval. In 2021 alone, the FBI conducted searches of communications intercepted under 702 more than 3.4 million times.

Last year, after acknowledging that hundreds of thousands of these searches were unlawful, the FBI said it had taken steps to curtail the number of queries carried out by its employees, reporting in 2022 as few as 204,000 searches.

It is impossible to count the number of Americans whose calls, emails, and texts are subject to surveillance under 702, the government claims, arguing that any attempt to reach an accurate figure would only further imperil the privacy of the Americans it surveils.

Congress is currently divided into two factions: Those that believe the FBI should be required to get a warrant before reading or listening to the communications of Americans collected under 702. And those who say warrants are too burdensome a requirement to impose on investigations of national security threats.

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