Lawmakers are at odds over legislation that allows the U.S. government to surveil noncitizens overseas without a warrant. Set to expire last December, Section 702 of the Foreign Intelligence Surveillance Act (FISA) specifically authorizes the National Security Agency (NSA) to collect communications of foreigners who are located outside the U.S. and who have been deemed intelligence targets.
Currently, the NSA does not have to issue warrants to collect the information from American companies such as AT&T when surveiling noncitizens. Critics of the legislation argue that it threatens the civil liberties of Americans given that some of the communications collected could be about or with U.S. citizens, allowing the government to track Americans through those communications.
Those in favor of the legislation, however, argue that it is critical to the nation’s security. “Loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks,” FBI Director Christopher Wray said before the House Committee on Homeland Security in November 2023. “For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats.”
The National Counterterrorism Center (NCTC) echoed concern around eliminating or limiting Section 702. “One of the most important questions for NCTC to determine is whether international terrorists could gain access to and pose a threat to the homeland,” NCTC Director Christine Abizaid testified at the same hearing as Wray.
“Section 702 is essential for our ability to do that, and without it, the United States and the world will be less safe.” Meanwhile, groups such as the American Civil Liberties Union (ACLU) have voiced concerns that not reforming Section 702 could lead to “backdoor” surveillance on Americans.
The group pointed to examples of the FBI using Section 702 to conduct searches on Americans’ communications around racial justice movements and protests and using it to surveil journalists and members of Congress. The ACLU came out in support of a House Judiciary Committee bill that would reform Section 702 to require federal agencies to obtain a warrant before conducting queries on U.S. citizens and would ensure “that those who violate the civil liberties of Americans will be held accountable for their actions.”
That bill came up against a House Intelligence Committee bill also meant to reform Section 702 under “Queen of the Hill” procedure in which the bill with the most votes progresses to the Senate for consideration. Some groups, such as the Electronic Frontier Foundation (EFF), a nonprofit digital rights group, called the Intelligence bill “a farce.” EFF argued that the bill would actually “create new intelligence authorities” and continue the possibility for U.S. agencies to surveil citizens without a warrant through, essentially, a “loophole.”
“This was not the intention of this national security program, and people on U.S. soil should not have their communications collected without a warrant,” EFF stated on its website. The “Queen of the Hill” showdown vote was postponed by Congress until 2024, and FISA approval was extended until April 2024 to give lawmakers more time to come to an agreement on a best path forward for Section 702. In the meantime, and to skirt around Congress, the U.S. Justice Department reached out to a court to renew the certification of Section 702 before it expires in April.
Assistant Attorney General for National Security Matthew Olsen stated that the request is aimed at avoiding a “dangerous gap in collection” of intelligence. “Section 702 of FISA is an indispensable national security tool, and we are committed to working closely with Congress to reauthorize it before it expires in April,” Olsen said in a statement. In February, the House also unveiled a new bill that aimed to unify the prior two House bills but more closely aligns with the Intelligence Committee’s version.
The new package does not include the warrant requirement that many reform advocates had supported. The proposed bill faces criticism among some House Republicans, and House Speaker Mike Johnson (R-La.) eventually canceled a vote on the legislation that had been scheduled for February. A spokesperson for Johnson stated on the social media site X that “the House will consider the reform and reauthorization bill at a later date,” leaving the future of Section 702 in limbo for now.
For more background, see the December 2015 issue of Congressional Digest on “Domestic Surveillance Reform.”
