This week, the House Judiciary and Intelligence Committees advanced two competing bills to amend Section 702 of the U.S. Foreign Intelligence Surveillance Act (FISA)—which, unless Congress finalizes a temporary extension within the National Defense Authorization Act, is set to expire on December 31. Congress first passed Section 702 in 2008 after the post-9/11 investigations exposed a communications gap between foreign and domestic intelligence units. Under Section 702, the National Security Agency (NSA) can intercept emails, phone calls, and text messages from specific non-Americans overseas—including those routed through U.S. companies or stored on U.S. servers. The White House and intelligence community have urged Congress to renew Section 702, describing it as “one of the nation’s most critical intelligence tools used to protect the homeland and the American people.” Privacy and civil liberties groups have voiced concerns that the Federal Bureau of Investigation (FBI) could inappropriately access incidentally collected communications related to Americans without probable cause.
The House is expected to bring both the Protect Liberty and End Warrantless Surveillance Act and the FISA Reform and Reauthorization Act to a floor vote next week. However, these bills demonstrate diverging approaches to the question of U.S. person queries, and it is not yet clear which direction Congress will take. Although Congress previously elected to renew Section 702 in 2013 and 2018, reauthorization comes with a different set of trade-offs in 2023. This report describes how shifts in U.S. intelligence priorities, technological advancements in data collection, and EU concerns over digital trade have impacted the debate to renew Section 702. First, it explains how the U.S. government benefits from Section 702 to conduct national security activities, especially to address the evolving cybersecurity and espionage challenges from China’s rising influence. Then, it explores possible changes that Congress could make to Section 702 to safeguard privacy and prevent undue surveillance in a digital age.
A Brief Overview of Section 702
Since its inception, a primary purpose of Section 702 has been to monitor and prevent foreign terrorist activity against the United States. In 2013, General Keith Alexander, who served as NSA director at the time, stated that Section 702 helped thwart roughly 42 terrorist plots and provided “material support” to 12 additional ongoing investigations. These activities included interrupting an al Qaeda–linked plot to bomb New York City’s subway in 2009 and identifying Khalid Ouazzani, who provided financial resources to al Qaeda in 2010. In 2017, then director of national intelligence (DNI) Daniel Coats testified that Section 702 led to the targeting and killing of Hajji Iman, second-in-command of the Islamic State. Around that time, the DNI also revealed that Section 702 produced information that enabled a U.S. partner in Africa to arrest two Islamic State terrorists suspected of planning an attack against U.S. individuals.
Despite the origins of Section 702 in counterterrorism, national security leaders have publicly shifted to a much wider focus to make the case for renewal in 2023. For example, deputy attorney general Lisa Monaco revealed that Section 702 was used to combat cyberattacks and murder-for-hire plots and contributed to a decline in the frequency of victim payments during ransomware attacks to 34 percent. Director of the Office of National Drug Control Policy Rahul Gupta described the usefulness of Section 702 in countering drug trafficking, particularly to locate illegal global supply chains that feed into the national opioid crisis. Assistant secretary for export enforcement Matthew S. Axelrod noted that 702 is instrumental in protecting sensitive U.S. technology from foreign adversaries, including to designate foreign companies to the Entity List, enforce export controls, and identify espionage attempts.
However, privacy advocates have questioned the enduring presence of 9/11-era surveillance laws, including Section 702, outside the original context of counterterrorism. Because Section 702 authorizes the NSA to target a broad range of internet and cellular communications by non-U.S. individuals, it also sweeps in messages from Americans who correspond with them. The NSA then stores these messages for approximately five years and allows the FBI to search a limited percentage of this database for communications connected with U.S. citizens in select contexts without first obtaining a warrant or court order based on probable cause. Section 702 lacks traditional judicial oversight; it is subject to a limited Foreign Intelligence Surveillance Court (FISC), which operates clandestinely and hears arguments only from executive branch agencies. These privacy standards are lower than otherwise required for traditional law enforcement investigations of Americans under the Fourth Amendment, which has sparked debate over their appropriateness for intelligence activities unrelated to immediate threats of mass violence.
