The House recently passed a two-year reauthorization of Section 702, a warrantless surveillance law that allows the government to collect the communications of targeted foreigners abroad, including interactions with Americans. While national security officials say this collection is crucial for gathering foreign intelligence and counterterrorism information, privacy advocates are concerned about the government’s ability to collect Americans’ messages without a warrant. Critics argue that using Americans’ identifiers to search for information in the repository of messages is a violation of the Fourth Amendment.
Section 702 was established after the 9/11 attacks, when President George W. Bush authorized a warrantless wiretapping program called Stellarwind. This program violated the Foreign Intelligence Surveillance Act of 1978 (FISA), which required a judge’s permission for national security surveillance activities on domestic soil. Congress later legalized a form of this program, now known as Section 702, by exempting it from the warrant rule in FISA. The law has been controversial due to concerns about privacy and the potential misuse of collected information.
Even if the law were to expire, the program could continue operating until April 2025 due to a recent FISA court ruling. However, the intelligence community has urged Congress to reauthorize the program to avoid legal uncertainty and potential gaps in intelligence collection. Former President Donald Trump recently called for the law to be “killed,” citing his allegations of being illegally surveilled during his campaign. Despite his efforts to block the legislation, the House ultimately passed the reauthorization bill after Speaker Mike Johnson made changes, including reducing the extension to two years.
A proposal to require warrants to search for Americans’ messages swept up by the Section 702 program was narrowly rejected in the House. National security officials had lobbied against the proposal, arguing that it could hinder investigations by requiring a higher standard of evidence before searching for information. Privacy advocates were disappointed by the failed amendment, as they see a warrant requirement as essential to protecting constitutional rights. The bill also includes provisions to reduce the risk of improper queries and limit access to raw information.
The House approved several amendments to the bill, including ones that would expand the use of the Section 702 program to gather intelligence on foreign narcotics trafficking organizations and vet potential foreign visitors to the United States. The bill will now move to the Senate for further debate, where lawmakers like Senator Ron Wyden are expected to push for additional limits on the legislation. The future of the reauthorization of Section 702 remains uncertain, with ongoing debates between national security concerns and privacy interests shaping the discussion.
