Tina Jagerson: I’m going to give you a number: 702.  For most people, that number won’t mean much, if anything.

But for the Intelligence Community, which is charged with protecting the nation’s security, that number refers to Section 702 of the Foreign Intelligence Surveillance Act, or FISA.  

This part of the broader law gives the FBI and other federal agencies the authority to conduct targeted surveillance of non-U.S. citizens located outside the US—under specialized circumstances and with proper approvals and oversight.

Section 702 is indispensable to the Intelligence Community’s role in protecting the country from spies, malicious cyberattacks, terrorists, and other foreign threats.

On today’s episode of our podcast, we’ll look at Section 702—what it is, what it's not, and why you’ll likely be hearing a lot about it in the near future.

I’m Tina Jagerson, and this is Inside the FBI.

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Jagerson: Today, we’re joined by FBI Deputy Director Paul Abbate. As Deputy Director, he oversees all of the FBI’s domestic and international investigative and intelligence activities, including our use of Section 702. Good afternoon, Deputy Director. Thanks for joining us today.

Deputy Director Paul Abbate: Good afternoon, Tina. Thank you for having me here, and really looking forward to helping listeners gain a better understanding of FISA Section 702.

Narrator: That’s great. We’re excited to learn more about it.

For those who may not have ever heard of 702 before, let’s start with the basics: What exactly is Section 702

Deputy Director Abbate: So first, it’s important to understand that Section 702 is really a critical part of the Foreign Intelligence Surveillance Act. Section 702 was added to that law—which is also known as FISA, for short—in 2008, and was reauthorized by Congress in 2012 and again in 2018.

Section 702 is a program authorized by Congress, with rules set by Congress and the Foreign Intelligence Surveillance Court—also known as the FISC.

These rules were included to protect Americans’ privacy and civil liberties, importantly.

And this program authorizes the U.S. Intelligence Community to target non-US persons located outside the U.S. for the collection of foreign intelligence information.

I want to make clear: 702 does not let the FBI target Americans—only non-U.S. foreign targets.  

Jagerson: So, we’re collecting electronic communications about non-U.S. persons who are located in other countries to obtain foreign intelligence information. Why is it so important for the Intelligence Community to have Section 702 to do that? 

Deputy Director Abbate: That’s an excellent question. Section 702 is critically important to our national security. And as technology has evolved and threats to Americans have increased, it’s only gotten more crucial to protecting the country.

As the threats we’re seeing from the governments of China, Russia, Iran, and all over the world change and get increasingly complex, we need as many tools as possible to quickly gain intelligence about these threats and work to lessen their impacts.

Without Section 702, we wouldn’t be able to fill critical intelligence gaps—ones that foreign threat actors regularly take advantage of to conduct cyberattacks, spying campaigns, terrorism, and other foreign threats.

Simply put, Section 702 is invaluable and irreplaceable to our ability to know what our foreign adversaries are doing and how they’re doing it. Without this vital intelligence, we wouldn’t be able to protect the American people or our country.

Jagerson: What’s the FBI’s role when it comes to Section 702?

Deputy Director Abbate: The FBI's role is to review, analyze, and act on foreign intelligence information that’s already been lawfully collected under Section 702. In fact, we’re the only agency in the program that is allowed to take action inside the U.S. to protect Americans.

The FBI is unique in that it has a dual mission—we’re both a law enforcement agency and an intelligence agency. Protecting Americans and the United States from national security threats is a huge part of that.

From our perspective, the primary national security threats to the homeland exist beyond our borders.

Thus, Section 702 is an exceptionally valuable tool that we use as part of national security investigations. This is because it ensures we can act on foreign threats and not be in a situation where we can miss things that harm the American people.

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Jagerson: Now that we know what Section 702 is and why we need it, let’s discuss how it helps us in our day-to-day lives, and why it’s so important for the American public.

Can you give us an example of how the FBI has used Section 702?

Deputy Director Abbate: The intelligence we obtain through 702 authorities is indispensable in our efforts to safeguard Americans, as well as American businesses, from foreign threats. 

Section 702 helps us use lawfully collected information to connect the dots between bad actors located abroad and the people, organizations, or institutions within the U.S.—including our critical infrastructure—that they’re trying to target.

We can then use that intelligence information to notify victims who are in danger in some way and may not even realize it. It allows us to warn those victims so they can take steps to protect themselves from the foreign threat.

And that’s exactly what we were able to do when the government of Iran conducted a ransomware attack against a U.S. nonprofit in 2022. In fact, because of intelligence we got from Section 702, we were even able to help the victim recover their information in less than a week, without paying a ransom.

We also used Section 702 to identify the hacker responsible for the Colonial Pipeline ransomware attack in 2021. In that case, we successfully recovered most of the more than $4 million ransom payment the company paid to the hacker.

Section 702 also helped us prevent Chinese cyber hackers from gaining access to the computer networks of a major U.S. transportation hub, preventing untold financial losses and transit disruptions, and—most importantly—protecting American lives.

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Jagerson: It’s good to know that the FBI can use its Section 702 authorities to keep us safe. I will point out that there are some critics out there regarding our Section 702 use. Can you explain how the Bureau’s addressing those concerns?

Deputy Director Abbate: Sure. Most of the attention that the FBI’s use of Section 702 has gotten over the last few years has involved compliance challenges. These challenges related to FISA query compliance, or how the FBI ran searches on data that was already lawfully collected under Section 702.

To understand these challenges, though, listeners first need to understand how FISA queries work.

The FBI has a responsibility to review Section 702-collected data in an efficient, limited, and targeted manner, and we have a responsibility not to miss anything important when doing so.

Querying allows us to review and make connections within that data. Think of it as if you were trying to find one specific email and needed to search your entire mailbox to find it. You’re looking through emails you already have for one very specific email you need. That’s similar to what we do with the Section 702 collection when we query it.

In the FBI’s case, our Section 702 queries only access a small subset of Section 702 data—about 3.2%—of the Intelligence Community’s full collection of Section 702 data. And this subset of data is directly related to national security threats to the United States and to Americans—like foreign terrorists, spies, and malicious cyber actors.

Where the criticism comes is when the FBI uses U.S. person identifiers to query this small subset of lawfully collected Section 702 data.

But—to be clear, again—this is a very small subset of data, lawfully collected by targeting non-U.S. persons outside the United States.

And we use U.S. person identifiers to query this subset of data for two reasons. The first is to identify U.S. persons who actively work with foreign powers, like foreign terrorist organizations or hostile intelligence services, to harm U.S. national security. The second is to determine if U.S. persons are current or potential victims targeted by foreign powers and to investigate the extent of that targeting, so we can warn the victim or take action to help protect them.

Long story short, the only way we’d ever see any information about a U.S. person through a FISA query is if that person had contact with someone connected to terrorism, espionage, foreign cyber threats, or other threats to our national security, or if those people are talking about that American.

So, starting in 2021, we made some extensive changes to address the root causes of the FBI’s non-compliance issues. These reforms included making important changes to our database systems to prevent inadvertent FISA queries. We also overhauled and enhanced our training requirements. For high-risk queries like sensitive queries or batch jobs where you can run many terms at once, we now require pre-approvals by an attorney before they can be run. And, in some sensitive cases, in this role, I’m personally required to sign off on the query beforehand.

We’ve also established the FBI’s Office of Internal Auditing to focus solely on monitoring, auditing, and reinforcing FISA compliance.

And in June 2023, I announced new accountability measures for personnel who run non-compliant FISA queries in a negligent manner. Under this new policy, personnel will face escalating consequences for performance incidents involving negligent or careless querying. Incidents where an employee has acted recklessly or engaged in intentional misconduct will continue to be referred to our Inspection Division for action.

Jagerson: So, have the reforms made a difference?

Deputy Director Abbate: Yes, the reforms have had a highly positive effect. They’ve significantly lowered incidents of FISA query non-compliance because of our strong focus on the systemic issues.

A lot of the compliance issues you may have heard about happened before these reforms and are exactly the type of issues that the reforms are aimed at and have been effective in eliminating.

Evaluations that were conducted after these reforms were made have shown that the FBI’s compliance with Section 702 query rules has significantly improved. In fact, in an April 2023 opinion from the Foreign Intelligence Surveillance Court, the court calculated that FBI personnel complied with the query standard over 98% of the time. Likewise, a March 2023 Department of Justice report stated that the FBI had a nearly 99% compliance rate with the FISA query standard. These external reports are consistent with internal findings by the FBI’s Office of Internal Auditing. And everyone is working hard to ensure progress continues to be advanced and sustained.

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Jagerson: This leads us to the “so what” portion of our conversation. What does all this mean for the average American? Why are we talking about Section 702 now, and what does the public need to know about it?

Deputy Director Abbate: This is a timely topic because Section 702 is set to expire on December 31, 2023, unless Congress votes to reauthorize it.

The Intelligence Community needs Section 702, not only to counter threats we’re already aware of, but also to identify and address future risks. Achieving our mission of protecting the American people and upholding the Constitution requires us to continually examine how we can improve. And when it comes to ensuring U.S. national security, Section 702 authorities have allowed us to do just that. As stated, Section 702 is vital to the FBI’s ability to understand and stop threats against the homeland—including our citizens, critical infrastructure, and our economy.

We take our responsibility to protect Americans’ civil liberties and privacy in everything we do incredibly seriously. We’re also committed to using the authorities entrusted to us as responsibly as possible. The FBI is committed to showing Congress and the American people that we can be good stewards of our Section 702 authorities. We’ll keep evaluating and making changes, as necessary, to improve our FISA query compliance and to maintain congressional and public trust going forward

Jagerson: Deputy Director Abbate, thanks so much for joining us today for this important conversation and for providing some much-needed background about the sometimes-confusing topic of Section 702.

Deputy Director Abbate: Thank you, Tina, and thanks to all of our listeners.

Jagerson: You can visit our website at fbi.gov/fisa to learn more about Section 702 and the FBI’s efforts in this area.

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This has been another production of Inside the FBI. You can follow us on your favorite podcast player, including Spotify, Apple Podcasts, or Google Podcasts.

You can also subscribe to email alerts about new episodes fbi.gov/podcasts.

I’m Tina Jagerson from the FBI’s Office of Public Affairs. Thanks for tuning in.