Why Congress is fighting over a central tool of American surveillance : NPR

A key tool of the US spy community will expire without Congressional action this month. The government says the information gathered through the provision – Section 702 of the Foreign Intelligence Surveillance Act, or FISA 702 – underpins most of the articles in the president’s daily intelligence briefings and is a vital asset in the fight against international terrorism and trafficking.

But many lawmakers, both Republican and Democrat, are concerned that FISA 702 allows the federal government to spy on the communications of American citizens without a warrant, a violation of their constitutional right to privacy.

The growing battle to strengthen the law’s civil liberties protections is likely to be difficult — and supporters of the provision claim it could jeopardize national security.

What is Section 702 of the Foreign Intelligence Surveillance Act?

Section 702 of FISA gives US intelligence agencies the authority to collect and review electronic communications of foreign nationals located outside the United States without obtaining an individual court order.

Sometimes, foreign nationals communicate with people in the United States, leading to accidental collection of Americans’ communications.

The Office of the Director of National Intelligence says the government uses information collected through the program to protect the US and its allies from foreign adversaries, including terrorists and spies, as well as to inform cybersecurity efforts.

“No one can deny the enormous intelligence value of Section 702,” former National Security Agency general counsel Stewart Baker told Congress in January.

Baker said, “The U.S. government has credited the program with helping to disrupt numerous recent terrorist attacks here and abroad, identifying the Chinese origin of imported fentanyl precursors, responding to ransomware attacks on U.S. companies, identifying the intrusion of Chinese hackers into a network used by a major U.S. transportation hub, and disrupting foreign government efforts to carry out kidnapping, assassination, and espionage on U.S. soil. They The examples appear superficially.”

Why is Congress debating this now?

The program’s 2024 authorization is set to expire on April 20 — unless Congress votes to renew it. Congress has always attached an expiration date to Section 702, making its renewal a frequent battle on Capitol Hill.

Civil liberties-minded lawmakers from both parties have long been concerned that Section 702 enables illegal, warrantless surveillance of American citizens by the federal government. And unlike most issues in contemporary politics, the issue does not break down clearly along party lines.

Prominent critics include Senator Mike Lee, R-Utah, Senator Ron Wyden, D-Ore., and Representative Warren Davidson, R-Ohio.

But, with the change in administrations since the last renewal fight, some lawmakers have switched sides.

Rep. Darrell Issa, R-Calif., who previously voted against the renewal because of the lack of a warrant requirement to ask for information about Americans, pointed out hill He thought the improvements to the program were working.

Rep. Jamie Raskin, D-Md., is working to unite his colleagues against renewal — after voting for it in 2024.

President Trump supports extension without making any changes to the program.

“When used correctly, FISA is an effective tool to keep Americans safe. For these reasons, I have called for a clear 18-month extension,” Trump wrote in a March post on Truth Social. “With ongoing successful military activities against the terrorist Iranian regime, it is more important than ever that we remain vigilant, protect our homeland, troops and diplomats deployed abroad, and maintain our ability to quickly deter bad actors who seek to harm our people and our country.”

The position is a major change for Trump, who has spoken out against the program in the past. During the Biden administration, before the final renewal vote in April 2024, Trump posted “Kill FISA, it was used illegally against me and many others.”

How is the information actually collected?

A special court, the Foreign Intelligence Surveillance Court (FISC), issues a sweeping authorization each year that allows the government to collect information about any target falling under certain categories proposed by the Attorney General and the Director of National Intelligence.

The National Security Agency, National Counterterrorism Center, Central Intelligence Agency, and FBI receive information directly from U.S. companies that facilitate electronic communications such as email, social media, or cellphone service.

The National Security Agency also collects communications “as they traverse the backbone of the Internet with the forced assistance of the companies that maintain those networks.”

What role does Section 702 play in the US intelligence gathering landscape?

Enormous amounts of information are collected under Section 702 authority: there were 349,823 surveillance targets in 2025, up from approximately 246,000 in 2022. Each goal can have many records collected – think about the number of emails arriving in your inbox each day – creating a huge database of information.

According to a government release, in 2023, 60% of the President’s daily briefs – daily summaries of critical national security issues prepared for the most senior administration officials – included Section 702 information.

It is also used extensively to combat arms and drug trafficking – 70% of the CIA’s illicit synthetic drug disruptions in 2023 originated from FISA 702 data, the document says.

Can the government search Americans’ information in the repository of information collected under Section 702?

Yes, within certain parameters that have been gradually narrowed over the nearly two-decade lifespan of the law.

Here are some of the reasons the government says it might seek Americans, as included in a public report from the Office of the Director of National Intelligence (ODNI):

• “Using the name of an American man held hostage to trace his location and condition through the communications of the terrorist network that abducted him;
• Using the email address of a U.S. victim of a cyberattack to quickly identify the scope of malicious cyber activities and alert the U.S. person about an actual or pending intrusion;
• Using the name of a government employee contacted by foreign spies to trace foreign espionage networks and identify other potential victims; And
• Using the name of a government official who will travel to identify any threats to the official by terrorists or other foreign adversaries.”

Does the government need specific permission from a court to search an American’s information?

No, the government does not need a targeted court order to search an American’s information in the collection of material collected under Section 702 authority — and has opposed the reforms that would be required.

Advocates for the intelligence community and the FBI argue that the requirement to obtain a court order to interrogate any American’s information would be overly burdensome.

“I am particularly concerned about the frequently discussed proposal that would require the government to obtain a warrant from a judge or a court order before personnel can conduct a ‘US person interrogation’ of information first obtained through the use of Section 702,” then-FBI Director Christopher Wray told Congress amid the final reauthorization fight in 2023.

“Requiring a warrant would be tantamount to a de facto ban, either because query applications would not meet the legal standard to gain court approval; or because, when the standard could be met, it would be only after the expenditure of scarce resources, the presentation and review of lengthy legal filings, and the passage of significant time – which, in a world of rapidly evolving threats, the government often does not have. This would be a significant blow to the FBI,” Wray said.

What do civil liberties and privacy advocates say about the law?

Privacy advocates say that, as written, the FISA statute allows the government to spy on the communications of Americans and others in the US without court permission, in violation of the privacy guarantees in the Fourth Amendment.

According to Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, “The FBI – and every other agency that receives Section 702 data – routinely searches that data for the express purpose of finding and using Americans’ communications.” “The government conducts thousands of such backdoor searches every year.”

Lawmakers in support of Section 702 reform share his concerns.

Sen. Wyden explained, “The Foreign Intelligence Surveillance Act is supposed to be about conducting surveillance on foreigners abroad. As such, the government does not need a warrant.” lever. “But because a lot of these targets are going to be talking to Americans, Americans get swept up in these searches, and that’s what I want to put some checks and balances on.”

Tennessee Republican Representative Tim Burchett said in a video that his concerns stemmed from past privacy violations on the part of the government: “The system was abused and they spied on thousands of Americans, violating the Fourth Amendment of the Constitution — and, well, it was a terrible situation.”

Has Section 702 information been improperly used to conduct surveillance on US citizens?

Yes, the Foreign Intelligence Surveillance Court described the FBI’s violations as “persistent and widespread” in a 2022 court document that recertified the 702 program.

The misuse documented in a congressionally mandated transparency report from the Office of the Director of National Intelligence included the warrantless search of a U.S. senator, journalists and political commentators, 6,800 Social Security numbers, 19,000 donors to a congressional campaign, and a family member of an FBI employee whom the employee’s mother suspected of having an extramarital affair. The anti-surveillance advocacy group Demand Progress has compiled a detailed timeline of major violations by the FBI and intelligence agencies, as identified by the FISC.

What are the current restrictions on queries to Americans’ information by federal law enforcement?

FBI agents must receive annual training on FISA and are generally prohibited from searching information on people in the US if the sole goal of the search is to investigate general criminal activity rather than finding foreign intelligence, and those searches require approval from a supervisor or attorney.

More senior approval is required when searching for information related to American political or media figures. In addition, the information in question cannot be used to conduct criminal investigations of people in the US without court permission unless the allegations relate to national security, death, kidnapping, serious bodily injury, or certain other serious crimes.

According to the bureau’s disclosures, the number of searches from Americans has dropped dramatically in recent years — from 119,383 queries from December 2021 to November 2022 to 7,413 queries in the same 2024-2025 window.