Section 702 was added to the Foreign Intelligence Surveillance Act (FISA) by amendment enacted by Congress in 2008. Section 702 allows the National Security Agency to conduct individualized searches of non-U.S. persons’ communications without any warrant. Under Section 702, the government may compel service providers located in the United States to provide electronic communications to, from and about non-U.S. persons located abroad. However, foreigners who are targeted by those searches sometimes communicate with Americans. Such communications involving U.S. persons thus are “incidentally” intercepted and “inadvertently” collected under the authority of Section 702.

Because Section 702 was controversial from the outset, it was originally set to expire on December 31, 2012, unless reauthorized. Its expiration date has been extended three times and is currently set to expire on April 20, 2026. Accordingly, the fate of Section 702 will be decided in the next few weeks.

For the reasons discussed below, the Chicago Council of Lawyers believes that Congress should not reauthorize Section 702 unless certain specific reforms are included as part of the reauthorization.

Four intelligence agencies have access to information collected pursuant to Section 702: the National Security Agency, Central Intelligence Agency, National Counterterrorism Center, and Federal Bureau of Investigation. The first three agencies are focused exclusively on gathering intelligence relating to possible foreign threats against the United States. The FBI, in contrast, is responsible for investigating certain domestic crimes as well as foreign threats.

The intelligence agencies use their access to the data collected under Section 702, which data remains available for years, to identify foreign threats, including possible links between those foreign threats and U.S. persons. When investigating potential foreign threats, these agencies can query the database of Section 702 information and search for particular names, email addresses, phone numbers or other attributes. When the search term identifies a U.S. person or is designed to return information about a specific U.S. person, that query is deemed to be a U.S. person query.

For the intelligence agencies, a U.S. person query is to be permitted only when it is reasonably likely to retrieve foreign intelligence information. However, the FBI, because of its role in investigating domestic crimes, can make a U.S. person query of the Section 702 database when investigating a crime that is not related to national security. Such searches are unofficially known as “backdoor searches.”

There are countless instances when the FBI misused its authority to make a U.S. person query of the Section 702 database. The Foreign Intelligence Surveillance Court (FISC), in May 2023, found that the FBI improperly searched for information in the Section 702 database 278,000 times over several years, including on Americans suspected of crimes. In 2021, the FBI conducted 113 queries of the database for the communications of persons who were arrested in connection with protests after the police killing of George Floyd and, in the same year, searched for the communications of more than 19,000 donors to a congressional campaign. Prior years backdoor searches have included targeting a member of Congress, a local political party, and multiple U.S. government officials, journalists, and political commentators.

In the face of the impending deadline for reauthorization, a bipartisan group of legislators, including Republican Senator Mike Lee and Democratic Senator Dick Durbin, have proposed legislation to reform Section 702 with emphasis on protections for privacy and civil liberties. The proposed legislation can be found here: www.lee.senate.gov/services/files/C23C9BE8-8808-4BD9-9165-63B35685238E

The proposed legislation, while recognizing the need to collect foreign intelligence in order to protect U.S. national security, provides for doing so within the context of protecting civil liberties and privacy rights. The proposed legislation thus contains revised provisions to ensure those protections. The most significant revision is to require a warrant for accessing the content, but not the metadata, of communications when a U.S. person is found in a Section 702 database search.

The legislation also would eliminate the “data broker loophole” that currently allows intelligence and law enforcement agencies to circumvent the Fourth Amendment and privacy laws by purchasing Americans’ information, including location history, from commercial data brokers.

FISA allows certain government agencies to compel the disclosure of communications stored at any “Electronic Communications Service Provider,” broadly defined to include virtually any business or organization that uses email, voicemail, or other communications equipment. The proposed legislation would narrow that broad definition.

Importantly, the proposed legislation also would (1) increase the ability of amici curiae to assist in reviewing and evaluating Department of Justice arguments to FISC for any data request authorizations and (2) require additional layers of internal supervision to increase compliance and oversight.

The Chicago Council of Lawyers strongly supports the proposed legislation and the importance of ensuring that such reforms are part of the statutory text of FISA so that they cannot be overridden by a future administration without congressional action.