Reauthorize FISA Section 702 — Again

National Review Online

Wednesday, April 15, 2025

 

Here we go again: Congress is voting imminently on whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which President Trump supports. Without reauthorization, the program would expire on April 20, placing a key anti-terrorism tool in legal limbo. Congress should vote to keep it in place.

 

We have supported the executive branch surveillance powers that are governed by Section 702 since its enactment in 2008. Before that, we supported the predecessor surveillance programs since their origins after September 11 — powers with roots dating back to the dawn of the Republic. Section 702 surveillance is also used for counterintelligence and interdiction of drug trafficking and human trafficking. The threat of international terrorism may not be as visible and visceral to the public as it was 25 years ago, but with the United States currently at war with the leading state sponsor of terrorism, this would be an especially inopportune time to let the legal authority for this crucial function lapse.

 

To recap: Surveillance targeting Americans, or targeting foreign civilians within the United States, is covered by the protections of the Fourth Amendment. (This may not be the case for foreign diplomats, spies, and other foreign government agents.) It therefore requires either a warrant or the availability of a judicially recognized exception to the warrant requirement. Nothing in Section 702 deals with those areas of surveillance — it addresses only surveillance targeting foreigners outside the United States, who have no rights protected by our Constitution.

 

Prior to 2008, such surveillance was conducted — largely by the National Security Agency — on the basis of the president’s Article II national security powers. Section 702 did not create those powers, but it subjected them to periodic judicial review and other legal strictures.

 

Where Section 702 and its predecessors become controversial is that surveillance of the communications of foreigners abroad may sweep in their conversations with Americans. Of course, this has a parallel in domestic law enforcement, where even searches or surveillance with a proper warrant can sweep in communications with people other than the target of the warrant.

 

There are two related concerns with Section 702 surveillance. One, given the relative ease of surveilling foreigners, is that such powers can be used pretextually to spy on Americans on the other end of the phone, text, or email. The other is that once surveillance agencies have collected so much data, they can be mined in a targeted way — especially by the FBI — for information whose original collection may have been honestly incidental. That latter concern is elevated in an age when artificial intelligence can process vast reams of information that previously would have gone unexamined. Say farewell to “security through obscurity.”

 

Deliberate abuse is best addressed by executive and congressional oversight rather than by killing the program. Significant reforms, however, have already been enacted on “minimization” — i.e., when the FBI can search the data that have already been collected. During the debates leading to the reauthorization of Section 702 in 2024, then-FBI Director Christopher Wray argued that the bureau had significantly reduced abuses by mandating new internal procedures. These included requiring supervisory approval, maintaining a paper trail of searches, notifying Congress of searches related to its members, preventing the FBI from storing searched data except in connection with a legitimate investigation, requiring the FBI to discipline personnel who misuse the system, and mandating annual reporting to Congress on the volume of queries about U.S. persons. Rules for submissions to the FISA court were also strengthened, including — of particular concern to Trump — explicitly requiring warrant applications that include information derived from political campaigns and sources to fully disclose those sources and what steps have been taken to corroborate them.

 

Prudently not trusting that the FBI would remain on its good behavior solely on its own initiative, Congress in 2024 codified these reforms directly into the statute. Skeptics may argue that Congress shouldn’t just keep rubber-stamping approval of a program it created 18 years ago and bum-rushing members into votes on the eve of expiration, but Congress already put in the work two years ago to revise the program. There’s no sign that these reforms haven’t worked — we did not get a reprise of Russiagate in the 2024 election even amidst that season’s riot of lawfare. That explains why longtime critics such as Trump, Jim Jordan, and Darrell Issa are now backing reauthorization.

 

Jordan, for example, notes that a 2023 report found 278,000 improper queries of the database, but mandated reporting to Congress found that searches on U.S. persons dropped from 2.9 million in 2022 to just 9,000 in the past year. This has happened while the use of Section 702 surveillance of foreign targets has expanded: Per official reports, targets increased from 246,000 in 2022 to 349,823 in 2025, and enough actionable intelligence was unearthed that, in 2023, 60 percent of the items in the President’s Daily Brief incorporated the fruits of Section 702 surveillance. Surveillance of foreign communications was, among other things, a crucial link in the intelligence chain that led to locating Osama bin Laden.

 

If Section 702 is not reauthorized, the executive branch will be back in the legal no-man’s-land it inhabited before 2008. No responsible president would simply stop doing surveillance of foreign threats, but the legal safeguards would lapse, and rank-and-file members of the intelligence and law enforcement community could face uncertainty about whether they would face legal jeopardy for doing their jobs.

 

It’s a curious situation that Congress has to keep revisiting this issue on increasingly compressed timelines — this is two years since the last reauthorization, and Congress is currently considering only an 18-month extension — when so many other laws, programs, and powers of the executive branch are authorized in perpetuity no matter how unpopular or obsolete they grow. Ideally, we’d like to see Section 702 put on the same footing as the rest of federal law — and still better, we’d like that to include periodic sunsets that force Congress to reconsider everything it has authorized. But in the meantime, one thing the federal government shouldn’t stop doing is watching out for foreign terrorist threats.