The Surveillance Law Congress Can’t Quit
Section 702 is set to expire April 20. Here's what it does, why it's controversial, and why it keeps coming back.
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Every few years, Congress faces a choice that forces an uncomfortable question: how much privacy are Americans willing to sacrifice in the name of national security?
That moment is here again. A powerful surveillance law, Section 702 of the Foreign Intelligence Surveillance Act, is set to expire on April 20.
President Trump wants Congress to pass a “clean” extension—reauthorize it as is, with no new amendments, no new limits. That’s quite a change from two years ago, when Trump called on lawmakers to “KILL FISA.”
Privacy advocates in both parties want reforms attached. And caught in the middle is a surveillance program that is, depending on who you ask, either the crown jewel of American intelligence or a standing threat to the constitutional rights of every American who has ever emailed, texted, or called someone overseas.
I’ve written about Section 702 before, but I have to admit I didn’t fully understand it or how it came to be. I was surprised to learn that it traces directly back to a secret post-9/11 NSA surveillance program that senior Justice Department officials believed was illegal. I hope you find this as useful as I did putting it together
Here’s what you need to know:
What Is Section 702?
Section 702 authorizes the government to surveil foreign nationals to collect intelligence on broad categories of information relating to national security threats. These threats range from terrorism to narcotics to anyone believed to possess information relating to the “conduct of the foreign affairs of the United States,” a vaguely-worded category that could include journalists, academics, and foreign aid workers.
In 2025, Section 702 targeted the communications of 349,823 foreigners located abroad.
The law authorizes the government to order a sweeping range of service providers—telephone and Internet companies, email providers, cloud storage services, data centers, and potentially anyone with access to equipment used to transmit or store communications—to hand over communications in which a foreign national located outside the United States is on one end of the conversation.
Proponents point out that Section 702 is not a “bulk” collection program that vacuums up communications from an entire region or population. Collection is tied to specific identifiers such as email addresses and phone numbers used by individual targets. But it can capture a huge amount of information on those targets, often of a highly personal and sensitive nature.
What makes the program controversial is that no warrant is required, even if an American happens to be on the other end of the conversation. The government calls this “incidental collection” and considers it a feature, not a bug; knowing which Americans are in contact with foreign terrorists was what the program was initially designed to do. But warrantless collection of Americans’ private communications is also the heart of the civil liberties and privacy arguments against the program.
The collected information is stored in a database that can be searched by employees of four agencies: the NSA, FBI, CIA, and the National Counterterrorism Center. Analysts can search it using “queries” for a name, email address, or telephone number, similar to an Internet search. When an FBI agent types in an American’s phone number or email address, that’s a “US person query,” and that’s where the program’s most significant abuses have occurred.
Who Oversees the Program?
There is oversight of the program, but it happens in secret.
A Foreign Intelligence Surveillance Court annually approves the targeting and querying procedures issued by the Attorney General. Each agency that receives communications under Section 702 has its own minimization procedures, rules governing how long the agency can retain data, who can access it, and how it can be shared, all of which must be approved by the court.
The court, however, meets entirely in secret, hears only from the government, and rarely publishes its opinions.
Why Does Congress Need to Keep Reauthorizing 702?
Section 702 is a post-9/11 creation with a legally murky origin.
After the September 11 attacks, President George W. Bush secretly authorized an NSA surveillance program code-named STELLARWIND, later referred to publicly as the Terrorist Surveillance Program. Senior Justice Department officials concluded that parts of it lacked adequate legal support because it was the kind of monitoring that the Foreign Intelligence Surveillance Act of 1978 required to be conducted with a court order.
STELLARWIND involved the interception, without warrants, of telephone and email communications of foreigners located outside the United States who were linked to al Qaida or international terrorism. The program, which was designed in part to find out who terrorists overseas were communicating with inside the United States, was first revealed publicly by The New York Times in 2005.
Congress then legalized it, first with a temporary measure in 2007 and then with the FISA Amendments Act in 2008, which created Section 702 with a five-year expiration date.
The sunset date gave Congress the ability to revisit the program and assess whether its benefits outweighed its costs. The statute has been reauthorized several times since. The most recent one, the Reforming Intelligence and Securing America Act (RISAA), passed in April 2024 and added significant new restrictions on how the FBI could query the database.
RISAA granted 702 a two-year extension, which is now expiring.
How Useful Is Section 702?
The intelligence community says 702 has been used to disrupt terrorist attacks, counter foreign cyber intrusions, track narcotics traffickers, monitor weapons proliferation, expose foreign assassination plots, and document Russian war crimes in Ukraine.
702 collection helped thwart a planned terrorist attack on a Taylor Swift concert in Austria in 2024 and, according to The New York Times,, helped Mexico kill the longtime leader of the Jalisco New Generation Cartel known as “El Mencho,” Intelligence officials have also cited 702’s role in the 2022 drone strike that killed al Qaida leader Ayman al-Zawahiri in Kabul, and said it helped foil China’s hack of a transportation hub.
In 2025, information gathered under 702 appeared in 63 percent of the articles in the President’s Daily Brief, the summary of high-level intelligence and analysis about global hot spots and national security threats.
The independent Privacy and Civil Liberties Oversight Board, created by Congress to review federal counterterrorism programs, says that the United States “is safer with the Section 702 program than without it.”
So What’s the Problem?
The case for 702 would be easier to accept if the program didn’t have a documented history of being misused to search for information about Americans.
When Congress enacted 702 in 2008, the government itself asked the surveillance court to ban deliberate searches of the database for Americans’ communications. Three years later, the Obama administration secretly returned to the court and got that ban lifted.
Analysts could now type an American’s name, email address, or phone number into the database and pull up their private communications without a warrant, even though those communications had been collected without the American ever being a target. This “backdoor search loophole” has never been closed.
The scale of 702 collection became clear in 2013 when former NSA contractor Edward Snowden disclosed the existence of PRISM, a program that used Section 702 authority to compel Microsoft, Yahoo, Google, Facebook, and other Internet giants to hand over users’ audio, video, photographs, emails, and documents.
The government has never disclosed how many Americans’ communications are swept up in the process. The Privacy and Civil Liberties Oversight Board noted in 2014 that the lack of data on incidental collection “hampers attempts to gauge whether the program appropriately balances national security interests with the privacy of US persons.” More than a decade later, that number remains unknown.
Another problematic category of collection swept up communications that merely mentioned a target, including exchanges between Americans that had no connection to the target beyond a passing reference. An email that included a target’s email address anywhere in its text, for example, would be collected even if neither party to the conversation was themselves a target or even previously known to the government. NSA suspended this “about” collection in 2017 after the surveillance court found that analysts had been using it to search for information on US persons in violation of the agency’s own procedures. Congress permanently banned the practice in 2024.
How Often Is 702 Used to Investigate Americans?
Most of the recent incidents drawing scrutiny involved the FBI searching for information on Americans. Such searches once numbered in the millions and now occur in the thousands.
Before 2021, the FBI’s system was configured so that agents searching its databases automatically searched the 702 collection unless they opted out. As a result, the FBI conducted more than 3.1 million US person queries in the first half of 2021 alone.
A Foreign Intelligence Surveillance Court ruling in 2022 noted that the FBI had conducted approximately 278,000 improper searches of 702 information over several years. Documented abuses from 2019 to 2022 include warrantless searches for a US senator, journalists and political commentators, information on January 6 suspects, George Floyd protesters, more than 19,000 donors to a congressional campaign, and an FBI employee’s family member, searched after the employee’s mother received a threatening phone call about his father’s extramarital affair.
The FBI isn’t alone. In 2022, an NSA analyst conducted queries on two occasions seeking information about two individuals the analyst had met through an online dating service.
The reforms of 2024 addressed many of these problems directly. The FBI switched from an opt-out to an opt-in system for 702 queries. Agents must now get pre-approval before querying the database for an American’s information, submit a written justification, and every US person query is reviewed three times. The FBI is prohibited from using the Section 702 database to conduct “evidence of a crime only” queries.
The results show a dramatic drop. FBI’s US person queries fell from 119,383 in 2022 to 57,094 in 2023 to just 7,413 in 2025 — a decline of 94 percent over three years. More than 98 percent were compliant with court-approved procedures.
The FBI argues that searching 702 remains a key investigative tool that helps agents verify leads, uncover plots, identify bad actors, and recognize links between foreign intelligence targets and Americans. In practice, however, the results are modest. According to the Privacy and Civil Rights Oversight Board, the vast majority of queries return no results. (In 2022, for example, fewer than 2 percent of the FBI’s searches of Americans’ communications turned up anything worth looking at.) The board noted that the strongest examples the FBI offered involved using these queries defensively to identify Americans targeted by foreign hackers and warn them.
What’s Controversial Right Now
“Warrants or bust”—Privacy advocates in both parties want the government to obtain a court order before searching the 702 database for information about a specific American. “Warrants or bust,” Rep. Lauren Boebert, R-Colo., told Politico last month. The intelligence community says a warrant requirement would be unworkable. The value of the program lies in its ability to run rapid queries to check whether an American has connections to a foreign threat. In 2024, an amendment that would have prohibited warrantless searches of Americans was narrowly defeated in the House.
Classified Surveillance Law—Senator Ron Wyden, D-Ore., a longtime critic of warrantless surveillance, said there’s a law related to section 702 that “directly impacts the privacy rights of Americans.” The problem is it’s a secret. Wyden said he has asked various administrations to declassify it, and so far, they have all refused. “The fact is, when it’s eventually declassified, the American people are going to be stunned that it took so long and that Congress has been debating this authority with insufficient information,” he said. So as the Senate prepared to vote on reauthorizing the government’s most powerful surveillance law, Wyden wrote it down in a classified letter and made it available in a secure room at Senate Security. Two members of Congress who read the classified letter came away alarmed. Representative Thomas Massie, the Kentucky Republican, said it was serious enough that the Constitution required him to vote against reauthorization. Representative Pramila Jayapal, the Washington Democrat, said she was “even more disturbed” after reading it. “This information should be declassified before any reauthorization vote takes place,” she said.
Sensitive queries—It’s not getting much attention, but the Privacy and Civil Liberties Oversight Board’s most recent report shows a big uptick in “sensitive” queries by the FBI. These included searches relating to political, media, and religious organizations, or individuals prominent in them. Sensitive queries more than tripled from 227 in 2024 to 839 in 2025. The FBI said the increase was due to “significant operational need.” Queries of religious figures need approval from an FBI attorney, and queries of political figures and members of the media require approval from the Deputy Director. Until recently, the Deputy Director was “deep state” conspiracy theorist and right-wing podcaster Dan Bongino.
What to Watch
The House Rules Committee was supposed to take up the bill on Wednesday, but delayed a key procedural vote to buy time to woo Republicans seeking to introduce an amendment to protect Americans' privacy rights. Discussions continued on Thursday.
In 2024, an unusual left-right coalition of Freedom Caucus members and progressive Democrats came within a single vote of attaching a warrant requirement to the bill; the amendment tied 212-212 and failed by the narrowest possible margin. The same coalition of civil libertarians on the right and privacy advocates on the left could reassemble, though the political dynamics have shifted with Trump applying direct pressure.
Keep an eye on Director of National Intelligence Tulsi Gabbard. Politico reported Thursday that Gabbard told Trump in February that she had reservations about reauthorizing 702 with reforms to protect Americans’ privacy. Back in her days in Congress as a progressive Hawaii Democrat, Gabbard introduced legislation to repeal Section 702.
Getting the Section 702 renewal over the line may require the same full-court lobbying effort by the intelligence community as last time.
suspicion of anyone and everyone in positions of power is wise and a civic duty. human nature does not change.