What to Know About Section 702, the Post-9/11 Surveillance Law

WASHINGTON — The Biden administration is expected this week to ramp up a political battle over a high-profile warrantless surveillance program that traces back to the aftermath of the Sept. 11, 2001, attacks. A 2008 statute that legalized the program, known as Section 702, will expire at the end of December unless Congress votes to extend it.

A top national security official at the Justice Department is expected to urge Congress to reauthorize Section 702 during a speech at the Brookings Institution on Tuesday. Top F.B.I. and National Security Agency officials have already asked lawmakers to do so, portraying the authority as critical for gathering foreign intelligence and protecting against threats stemming from overseas hackers, spy services and terrorists.

But civil liberties advocates have opposed Section 702 or pushed for tighter limits on the program because it sweeps in Americans’ messages, too. This reauthorization cycle, those skeptics have backing among Republicans who have aligned themselves with former President Donald J. Trump’s distrust of security agencies and surveillance.

Here is a closer look.

It is a law that allows the government to collect — on domestic soil and without a warrant — the communications of targeted foreigners abroad, including when those people are interacting with Americans.

Under that law, the N.S.A. can order email services like Google to turn over copies of all messages in the accounts of any foreign user and network operators like AT&T to intercept and furnish copies of any phone calls, texts and internet communications to or from a foreign target.

After the Sept. 11 attacks, President George W. Bush secretly ordered a warrantless wiretapping program code-named Stellarwind. It violated the Foreign Intelligence Surveillance Act of 1978, or FISA, which generally required a judge’s permission for national security surveillance activities on domestic soil.

The main rationale was that when Congress enacted FISA, lawmakers had relied on geography to require warrants for domestic wiretapping while keeping overseas spying unfettered. But technological advances — the internet and fiber-optic lines — made foreigners’ messages available on domestic networks, where FISA’s warrant rule applied.

Stellarwind was based on a disputed assertion of executive power. Congress later legalized a form of that program in Section 702.

National security officials argue that doing so would sharply curtail the foreign intelligence the government is able to gather: Practically, applying for court orders requires time and resources, and legally, evidentiary standards have to be met. In 2021, the most recent year for which data is available, there were more than 230,000 foreign targets of Section 702 warrantless surveillance. By contrast, the government obtained FISA court orders to eavesdrop on about 300 Americans or noncitizens on domestic soil.

Privacy advocates have criticized Section 702 because it sometimes enables the government to collect Americans’ messages without any court order. While the law forbids using Section 702 to target Americans, when a foreign target communicates with an American, the government incidentally collects that American’s messages to and from its target.

The privacy of noncitizens abroad has played little meaningful role in the domestic debate. The Fourth Amendment, which prohibits unreasonable searches, does not establish rights for foreigners overseas.

Even the original FISA left the government free to gather, without a warrant and on domestic soil, messages that are purely from one overseas foreigner to another. Since the Reagan years, the N.S.A., with the help of communications companies, has been able to vacuum up in bulk — without targeting anyone — messages that both originate and terminate abroad as they travel across American networks.

To use that so-called transit authority, however, the N.S.A. has had to be highly confident that no messages involving Americans would be in the mix. Section 702 created an exception, enabling the government to pursue specific foreigners’ communications from domestic sources even when there is a risk that some messages to or from Americans may swept in.

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The government generally stores the raw messages it collects under Section 702 for five years, including those it incidentally gathers from Americans. Analysts at several agencies can search the repository by using Americans’ identifiers — like names, Social Security numbers, passport numbers, phone numbers and email addresses — as query terms.

Critics call such queries a “backdoor search loophole” to the Fourth Amendment’s usual requirement that the government get warrants to intrude on Americans’ private communications.

For starters, officials must have an authorized purpose. At the C.I.A., the N.S.A. and the National Counterterrorism Center, analysts must have reason to believe the search is likely to yield information about foreign intelligence.

At the F.B.I., agents can hunt for either foreign intelligence information or evidence of a crime. Since 2018, the bureau has been required to obtain a court order to review anything that comes up in response to queries using American identifiers that are purely for a criminal investigation with no link to national security.

Not always. For example, an audit made public in December discussed various episodes in which F.B.I. analysts queried the Section 702 repository using Americans’ identifiers for unapproved reasons, such as vetting potential informants or maintenance workers. But it portrayed those searches as misunderstandings of the rules, not deliberate malfeasance.

Other incidents carried political overtones. The audit faulted one F.B.I. official for querying, with no substantive basis, “the names of a local political party” to determine if it had links to foreign intelligence.

And it disclosed that an F.B.I. intelligence analyst had queried “using only the name of a U.S. congressman,” without necessary “limiters” to closely focus the search on a specific topic. That threatens to intrude into the reauthorization fight. Representative Andy Biggs, an Arizona Republican, pressed the F.B.I. director, Christopher A. Wray, this month to provide details.

Attacking the Russia investigation, Mr. Trump has stoked his supporters to distrust national security agencies and FISA. Applications for court orders to wiretap Carter Page, a former adviser to his campaign, were riddled with errors and omissions, an inspector general found. (A follow-up report found systemic sloppiness in unrelated applications.)

The House Judiciary Committee, which shares jurisdiction over FISA with the Intelligence Committee, is led by Representative Jim Jordan, an Ohio Republican and a Trump ally. He told Fox News last fall that “I think we should not even reauthorize FISA, which is going to come in the next Congress.”

Notably, however, the FISA wiretapping of Mr. Page that Trump allies are upset about was the 1978 kind that involves warrants, the authority for which is not expiring.

Mr. Biggs has revisited an idea that was floated in 2018, the last time Congress renewed Section 702: requiring the government to get a warrant before using an American’s identifier to query the raw repository.

It is less clear what specific potential overhauls to traditional FISA may get traction. The F.B.I. already tightened its rules and procedures for such applications, the FISA court imposed additional reforms and Congress enacted further limits in a 2020 law.

With some exceptions, members of the Intelligence Committees tend to be more supportive of surveillance powers, while Judiciary Committee members are more focused on civil liberties. Against that backdrop, there are early talks in the Democratic-controlled Senate, according to aides.

In the Republican-controlled House, Representative Darin LaHood, an Illinois Republican and a former prosecutor who sits on the Intelligence Committee, is leading a working group to try to get Section 702 reauthorized. In a statement, he said the examination of Section 702 “and the possibility of reforms” would be a collective undertaking of both committees.

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