FISA Section 702 Reauthorization Faces Scrutiny Amid Privacy Concerns

The reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is once again under debate, sparking concerns over privacy rights and government surveillance powers. Originally intended to target non-U.S. Persons abroad for foreign intelligence purposes, the law has faced criticism for its potential impact on Americans’ civil liberties. After a two-year extension granted by the Reforming Intelligence and Securing America Act (RISAA) in 2024, the authority is set to expire on April 19, 2026, prompting renewed calls for reform.

What is Section 702?

Section 702 allows the Attorney General and the Director of National Intelligence to conduct targeted electronic surveillance of non-U.S. Persons located outside the United States to collect foreign intelligence information. This is achieved through the compelled assistance of electronic communications service providers. Whereas U.S. Citizens are not the intended targets, their communications can be incidentally collected when interacting with these foreign targets, leading to concerns about warrantless searches of American data.

RISAA and its Impact

The Reforming Intelligence and Securing America Act of 2024 (RISAA) reauthorized Section 702 for two years, implementing some changes to the program. These included more stringent requirements for Federal Bureau of Investigation (FBI) queries, increased training and reporting requirements, new disciplinary rules for noncompliance, and the mandatory use of FISA Court amici in Section 702 certifications. RISAA similarly broadened the scope of the program by expanding the definition of “electronic communications service provider” and “foreign intelligence information” to include the international production, distribution, and financing of illicit drugs.

FBI Querying Practices Under Scrutiny

Despite the reforms introduced by RISAA, concerns remain regarding the FBI’s querying practices. A report released by the Department of Justice Office of the Inspector General (DOJ OIG) found that while the FBI has made progress in reducing noncompliant queries, continued vigilance and oversight are critical. The report, mandated by RISAA, assessed the FBI’s safeguards when searching information collected under Section 702, particularly when using search terms likely to identify U.S. Persons. The FBI has implemented all RISAA-required querying reforms, and the number of noncompliant queries has been substantially reduced.

Calls for Further Reform

Despite these improvements, some argue that more substantial reforms are needed. Critics point to past abuses of Section 702, including improper queries on peaceful protesters, lawmakers, journalists, and others. Several reform bills have been proposed, including the SAFE, PLEWSA, and GSRA, each aiming to enhance privacy protections and oversight.

The Path Forward

As the April 19, 2026, sunset date approaches, Congress faces a critical decision. The debate centers on whether to pursue a “clean” extension of Section 702 or to incorporate meaningful reforms to safeguard Americans’ privacy rights. The outcome will determine the future of this powerful surveillance authority and its impact on civil liberties.