A new report confirms what national security leaders have long warned: If Congress fails to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. stands at the brink of a self-inflicted national security calamity. (This op-ed was published on August 17, 2023, on The Hill online. Matt Olsen is the assistant attorney general for national security, Department of Justice, and Joshua A. Geltzer is the deputy assistant to the president and deputy homeland security advisor executive director.)
The President's Intelligence Advisory Board (PIAB) report highlights how crucial Section 702 of the Foreign Intelligence Surveillance Act is to the nation’s security, including to the FBI’s efforts to protect Americans from foreign threats, and recognizes that the reforms put in place by the FBI have yielded substantial compliance improvements. We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules. We look forward to engaging with Congress on the recommendations in the PIAB report, and appreciate the board’s professionalism, expertise, and judgment in conducting this important assessment.
April 24: FBI Releases FISA Query Guidance
April 5, 2023: Director Wray Remarks on Section 702 at Texas A&M University
November 2021: Background: FISA Query Guidance Documents
Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 to provide oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats. FISA sets out procedures for physical and electronic surveillance and collection of foreign intelligence information.
FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special federal court to consider issuing search warrants under FISA. To investigate a particular foreign target in the U.S., for example, an FBI special agent must first submit an application to the FISA Court establishing probable cause.
In 2008, Congress enacted Section 702 of FISA, which authorizes targeted intelligence collection of specific types of foreign intelligence information—such as information concerning international terrorism or the acquisition of weapons of mass destruction.
Section 702 only permits the targeting of non-U.S. persons who are reasonably believed to be located outside the U.S. it is not a bulk collection program; 702 is targeted, meaning every decision is individualized and documented and then reviewed by an independent oversight team.
Although all 702 targets must be non-U.S. persons reasonably believed to be located outside the U.S., Congress has always recognized that such targets may send an email or have a phone call with a U.S. person. For this reason, 702 requires specific procedures to minimize the acquisition, retention, and sharing of any information concerning U.S. persons.
“Minimize,” however, does not always mean “eliminate”—if, for example, a foreign terrorist indicated that a U.S. person was a key member of an ongoing terrorist plot, the information would be appropriately shared to allow the FBI to take further investigative steps. Congress also amended Section 702 to require specific procedures to ensure the querying of any 702-acquired information is consistent with the Fourth Amendment.
“In a technology environment where foreign threat actors can move to new communication accounts and infrastructure in a matter of hours—if not minutes—702 provides the agility we need to stay ahead.”
Director Christopher Wray
What Is Section 702?
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, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information.
The government uses the information collected under Section 702 to protect the United States and its allies from hostile foreign adversaries, including terrorists, proliferators, and spies, and to inform cybersecurity efforts.
Who Can Be Targeted?
Non-U.S. persons, located abroad, who are expected to possess, receive, or communicate foreign intelligence information.
Why It's Needed
Congress enacted Section 702 to address a collection gap that resulted from the evolution of technology in the years after FISA was passed in 1978.
By the mid-2000s, many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies.
Because of this change in communications technology, the government had to seek individual court orders, based on a finding of probable cause, to obtain the communications of non-U.S. persons located abroad. This proved costly because of the resources required and because the government couldn’t always meet the probable cause standard, which was designed to protect U.S. persons and persons in the U.S.
Who Can't Be Targeted?