Collecting U.S. Nationals’ Electronic Data Without a Warrant

Congress must periodically review the Foreign Intelligence Surveillance Act’s (FISA) Section 702—which authorizes electronic surveillance of non-U.S. persons reasonably believed to be outside the United States to gather foreign intelligence information—deciding whether to renew or allow it to expire. In December 2023, lawmakers wrestled with whether—and, if so, how—to extend Section 702 in the face of national security warnings and bipartisan privacy concerns, particularly allegations that U.S. persons’ communications were being collected without a warrant. Although critics highlighted past abuses of Section 702 authority and the potential for a lack of safeguards for U.S. nationals’ data, intelligence officials cautioned that letting the program lapse could lead to “one of the worst intelligence failures of our time.” This push-and-pull culminated in April 2024, when Congress passed the Reforming Intelligence and Securing America Act (RISAA) to reauthorize Section 702 through April 2026.

Congress added Section 702 to FISA in 2008 as part of the FISA Amendments Act. Unlike traditional FISA surveillance, Section 702 enables programmatic surveillance: the Attorney General and Director of National Intelligence certify annual targeting and minimization procedures that the Foreign Intelligence Surveillance Court (FISC) reviews in bulk without individualized court orders. Although the law forbids using Section 702 to target anyone on U.S. soil, U.S. agencies allegedly collect U.S. nationals’ information when communicating with a foreign target.

Notably, in June 2013, former National Security Agency (NSA) contractor Edward Snowden leaked hundreds of classified slides and documents revealing the scope and mechanics of U.S. and allied signals-intelligence programs. This leak included details about the NSA’s downstream collection of e-mails, video chats, and file transfers from major U.S. tech companies, and its upstream interception of communications from the Internet backbone under Section 702 authority.

The heated debate over Section 702 pits national security surveillance needs against constitutional and privacy protections. Critics contend that the structure of FISA proceedings—non-adversarial matters in which only the government is represented—leads to insufficient judicial pushback and fails to safeguard individual rights. In response to these critiques, in 2015 Congress established a panel of amici curiae—independent experts—to advise the FISA Court. Still, under current law, only the government may appeal FISC rulings. As a result, when surveillance requests are approved, no opposing party can challenge the decision.

Legal scholars generally urge stronger procedural safeguards for this secret court system. Some propose FISA’s amici to flag controversial surveillance approvals for the FISA Court of Review, creating an appeals mechanism to foster further scrutiny even when targets are not directly represented. Others advocate requiring the FISC to publish redacted opinions and annual reports on Section 702 certifications. Such reforms aim to preserve Section 702’s capacity to collect critical foreign intelligence while bolstering accountability and privacy rights.

In this week’s Saturday Seminar, experts and scholars discuss the reauthorization of FISA Section 702 and the ongoing debate over its future.

• In a 2023 report for the Center for Strategic & International Studies, Caitlin Chin-Rothmann of the Strategic Technologies Program contends that Section 702 must be reformed to keep pace with rapid technological change. Chin-Rothmann explains that as U.S. technology firms expand data-collection practices and cross-border digital communications proliferate, the incidental risks of surveillance increase. To address these concerns without undermining critical intelligence capabilities, Chin-Rothmann proposes codifying the EU-U.S. Data Privacy Framework and permitting civil-rights challenges to improper surveillance. Chin-Rothmann argues that balanced measures would modernize U.S. intelligence practices, restore global trust, and facilitate transatlantic digital trade while upholding democratic values and civil liberties in an evolving technological and geopolitical environment.
• In an essay for The Heritage Foundation, U.S. Deputy Secretary of Transportation Steven Bradbury argues that Congress should reauthorize Section 702 of FISA, but with guardrails to curb Federal Bureau of Investigation (FBI) overreach. Although Section 702 surveillance targets foreign nationals overseas, Bradbury emphasizes that it may also capture and misuse U.S. persons’ communications. Bradbury proposes requiring individualized FISC orders before the FBI can access Section 702 data that involves U.S. nationals and prohibiting the FBI from querying the database on its own authority. Bradbury contends that these reforms, combined with enhanced FISC oversight, would preserve Section 702’s national security value while protecting Americans from warrantless searches.
• RISAA substantially amended FISA Section 702, explains Andreas Kuersten, in a report for the Congressional Research Service (CRS). Kuresten highlights that RISAA imposed new privacy safeguards for Section 702, including expanding the definition of “foreign intelligence information” to cover global drug trafficking data, requiring annual FBI training on search procedures, and increasing oversight of “sensitive” queries involving political, media, or religious figures. Kuresten explains how RISAA holds the FBI more accountable for improper queries and subjects Section 702 searches to heightened U.S. Department of Justice and congressional review. As Section 702’s 2026 expiration date approaches, Kuresten notes that Congress must consider further reforms that extend beyond the RISAA.
• In a forthcoming article in the Tennessee Law Review, Noah Chauvin, professor at the University of Oklahoma College of Law, observes that although the RISAA enacted modest surveillance reforms, it also expanded the government’s surveillance powers and left a flawed oversight regime largely intact. Chauvin argues that FISA Section 702 delegates to courts programmatic oversight Congress is best positioned to perform, and that judicial doctrines and aggressive government lawyering have prevented the courts from performing rigorous individualized legal review. To address these issues, Chauvin calls on Congress to expand the FISA amici’s powers to challenge government surveillance, more closely oversee Section 702’s implementation, and direct the FISC to rigorously vet specific uses of 702 authority.
• The Fourth Amendment does not mandate a warrant to search American communications from a Section 702 database, George Croner of the Foreign Policy Research Institute contends in an article critiquing the Eastern District of New York’s United States of America v. Agron Hasbajrami opinion. Croner argues that Hasbajrami—holding that warrantless searches of Section 702-acquired communications for U.S. persons constitute a Fourth Amendment search requiring a warrant—contradicts both federal FISC precedent and congressional intent. Croner explains that the decision conflicts with the FISC’s longstanding view that Section 702 search procedures make such queries reasonable under the Fourth Amendment. Croner warns that broad adoption of the reasoning in Hasbajrami could undermine Section 702’s effectiveness in protecting national security.
• Using Section 702’s renewal cycle as a case study, Benjamin Lauenroth, a 2024 Georgetown University Law Center graduate, advocates for adopting sunset clauses in national security laws to improve regulatory accountability in a note in the Georgetown Law Journal. The opacity of national security legislation, Lauenroth contends, creates a power imbalance that favors the executive branch. Lauenroth explains that sunset clauses, such as Section 702, that add automatic expiration dates to surveillance authorities compel lawmakers to periodically debate and reauthorize powers. Lauenroth observes that the absence of such clauses allows Congress to avoid revisiting security programs while the executive branch defends its surveillance authority. Sunsets, Lauenroth concludes, serve as a democratic check on executive overreach by ensuring regular, transparent review.