Section 702: The fight over the government's spy powers

The quietest big debate in Washington D.C. right now is probably about Section 702 of the Foreign Intelligence Surveillance Act. This is a provision in federal law that empowers authorities to surveil the communications of foreign residents abroad — and also lets the government capture the messages of American citizens "when they're in contact with those targeted foreigners," The Associated Press reported. The provision has few limitations, and no warrants are required for it to be used. Federal officials say the law has helped them thwart terror attacks, while civil libertarians say it doesn't do enough to safeguard Americans' privacy.

The law in its current form expires at the end of the year, and a debate has emerged around its next potential version. 

Some reformers want any reauthorization to include a requirement for a court warrant when Americans are caught up in investigations conducted under the law. Section 702 "has been routinely abused in ways that violate Americans' fundamental civil liberties," a group of civil rights organizations said in a letter to Senate Majority Leader Chuck Schumer. The FBI has used Section 702 to access messages of "tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress," the letter added. 

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But the government says Section 702 "enables the U.S. government to gain intelligence about our most pressing threats," Assistant Attorney General Matthew G. Olsen, who runs the Justice Department's National Security Division, said in an October speech. The agency has "implemented significant improvements" to protect the rights of Americans, Olsen said. But adding a court-review requirement would slow FBI investigations and "actually make the country less safe," he added. 

Scrambled lines

The debate over Section 702 "scrambles the usual partisan lines," The New York Times reported, with "national security hawks and civil liberties-minded lawmakers" on both sides of the issue. Critics say the law's provision that allows American communications to be swept into surveillance of foreign targets amounts to a "backdoor search loophole" to Fourth Amendment privacy protections. But bills in both the Senate and House "stop short of requiring permission from a court" to be used in Section 702 investigations.

President Joe Biden himself has a mixed history on the issue. The ACLU noted that Biden voted as a senator against creating the law in 2008, saying at the time that Section 702 would be a "breathtaking and unconstitutional expansion" of executive branch investigative powers. But fifteen years later, the Biden administration is now advocating for the law's renewal. The ACLU wants tougher guardrails, saying, "whether a tool is convenient for the government does not answer the question as to whether that tool is constitutional."

Even advocates suggest some reforms are needed. Section 702 should be renewed, The Washington Post opined, but it should also be improved. FBI officials should be able to chase down leads when Chinese officers reach out to Americans "in hopes of turning them into spies for Beijing," the Post said. The outlet argued for codified some of the agency's newer procedures — which require high-level officials to approve searches involving "elected officials, members of the media, academics and religious figures." These procedures have helped make government overreach less likely, the Post said. 

'Operationally unworkable'

The Biden administration has quietly been pushing to renew Section 702 for most of 2023, but Axios reported that the first bill to do so was only introduced by lawmakers this month. The proposal would require investigators "to get prior approval from the attorney general before conducting a search for communications about or from a U.S. citizen." They could also only do so in cases involving "terrorism, drug trafficking, attacks on critical infrastructure or government officials and cyberattacks." The Biden administration has called the bill in its current form "operationally unworkable."

FBI Director Christopher Wray made an impassioned plea for Section 702 during an appearance before Congress this week, saying that American security will be threatened if the law lapses. Wray added that it would be "absolutely devastating" if a rival country launched an attack — or a cyberattack — that the U.S. didn't see coming. "Imagine," Wray said, "if we're not able to disrupt the threat because the FBI's 702 authorities have been so watered down."