One of the most controversial provisions of the US Foreign Intelligence Surveillance Act (FISA), which authorizes warrantless mass surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications, has expired after nearly two decades in force.
The powerful surveillance program under Section 702 of the FISA expired on June 12 for the first time in its history after months of negotiations by members of the US Congress failed to reach a conclusion.
The act allowed US intelligence agencies to collect communications from foreigners abroad without a warrant, and it routinely swept in Americans’ emails, messages, and calls, as well.
In fact, according to the government, more than 60% of the president’s daily intelligence briefing relies on information collected under the authority.
What is Section 702?
In 2008, Congress enacted Section 702 of the FISA that enabled the Intelligence Community (IC) to collect, analyze, and appropriately share foreign intelligence information about national security threats.
Notably, this collection of electronic communications did not require any warrant.
It was made possible because much of the global digital traffic flows through US-based companies and internet infrastructure.
The act makes it clear that the government can compel US companies and internet service providers to assist authorities in running such surveillance programs.
“Section 702… 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.”
These companies include internet service providers such as Google, Microsoft (including Outlook, Skype, etc.), Apple, Meta/Facebook, Yahoo, and Amazon.
Besides, telecom service providers such as AT&T and Verizon also fall under the scope of this act.
Broadly, any company that fits the ECSP definition (telecom carriers, email providers, messaging apps, cloud services, social networks, etc.) can be served with a Section 702 directive to share information and data.
Though Section 702 of FISA was enacted only in 2008, such a surveillance program was already running under the once-secret Stellarwind program created under the Bush administration after the September 11, 2001, terror attacks.
While, in theory, the act could only be used to surveil foreigners abroad, there were enough loopholes in its language to allow occasional snooping into the digital and electronic communications of US citizens as well.
According to FISA, “Section 702 only permits the targeting of non-United States persons who are reasonably believed to be located outside the United States. United States persons and anyone in the United States may not be targeted under Section 702.”
However, it does end up collecting Americans’ communications in two main ways: ‘Incidental Collection’ and ‘Backdoor Searches,’ which makes the act controversial.
Incidental Collection is when an American emails, texts, calls, or chats with one of those foreigners targeted under the act; the entire conversation is collected and stored.
Because Americans communicate constantly with people overseas, this sweeps in millions of Americans’ messages every year.
Furthermore, the act says that if the foreigners targeted and surveilled under Section 702 write an email or communicate with a US citizen, and indicate that the said United States person was a key member of an ongoing terrorist plot, this information would be appropriately shared to allow the FBI to take further investigative steps.
Once the data reaches the FBI, they can search the entire database using an American’s name, email, phone number, or other identifier without a warrant.
These are called “backdoor searches” or “US person queries.”
Therefore, even an American’s communications might be collected and recorded without probable cause or judicial approval.
Critics have argued that the combination of massive incidental collection + warrantless backdoor searches has turned Section 702 into a de facto domestic surveillance tool for Americans’ communications.
Further, civil rights groups have repeatedly warned that there is nothing that stops the government from using Section 702 against critics, activists, and religious minorities.
However, the intelligence community believes that Section 702 is one of the government’s most vital national security tools, used for counterterrorism, cyber defense, and tracking nuclear weapons threats and weapons of mass destruction (WMD), among other things.
According to the Director of National Intelligence (DNI), “Section 702 is vital to keeping the nation safe. It
provides intelligence on activities of terrorist organizations, weapons proliferators, spies, malicious cyber actors, and other foreign adversaries.”
The DNI also credits Section 702 for uncovering the network of Hajji Iman, the second-in-command of the self-proclaimed Islamic State of Iraq and al-Sham (ISIS), and many other dreaded terrorists.
It says that the act has helped protect US forces based abroad from suicide bombers, in countering weapons proliferation, and has even helped allies of the US.
Further, in defense of the act, the DNI said that “the world’s population is approximately 7.5 billion, and there are over 3 billion internet users worldwide. In 2016, the IC had approximately 106,469 targets authorized for collection under Section 702, which is approximately .004% of the world’s internet users and .001% of the world’s population.”
“Targeting under Section 702 is individualized and focused only on specific foreigners who are assessed to have foreign intelligence information. It is very unlikely that the average U.S. person would be in contact with a foreigner who falls within the limited and select group of individuals targeted under Section 702.”
However, does the lapse of Section 702 mean that US intelligence agencies can no longer request such information about foreigners from telecom and internet service providers?
What happens now?
For now, the US intelligence agencies can continue collecting information previously collected under the authority of Section 702 of FISA.
Intelligence collection under Section 702 of FISA is authorized annually by a federal court. Even if the law itself lapses, the existing court authorization remains valid, allowing collection to continue until the next renewal. As a result, electronic communications service providers are still legally required to turn over the requested data to U.S. intelligence agencies.
Still, lawmakers believe these companies could now challenge the law in court, potentially leading to delays.
However, intelligence agencies believe that even a small pause and intermittent delay at this time could have devastating consequences as the US prepares to host the FIFA World Cup and celebrate its 250th anniversary.
Elizabeth Goitein, a privacy rights advocate and senior director of the Brennan Center’s Liberty and National Security Program, says the FISA law is clear that companies must continue to comply with the government’s collection requests even after lapse, and that existing case law means any challenges will be sorted quickly. Companies risk a US$250,000 fine per day for noncompliance.
“The FISA court, under the law, has 30 days to resolve this type of challenge,” Goitein told NPR, and because the court has previously reviewed the statute, “I do not think it would take very long for the FISA court to compel compliance.”
Since the FISA court authorized information collection under Section 702 in March this year, existing collection activity may continue till March 2027.
However, since this is the first time in the act’s two-decade-long history that it has lapsed, we are in uncharted territory, and legal complications may arise.
The House of Representatives is scheduled to recess until June 23, meaning that the lawmakers will not be able to approve any extension for at least a week.
Another possibility is that President Trump may sign an executive order to extend the FISA deadline; however, legal experts are divided on whether or not he has the authority to do so.
- Sumit Ahlawat has over a decade of experience in news media. He has worked with Press Trust of India, Times Now, Zee News, Economic Times, and Microsoft News. He holds a Master’s Degree in International Media and Modern History from the University of Sheffield, UK.
- He can be reached at ahlawat.sumit85 (at) gmail.com
