Section 702 of the Foreign Intelligence Surveillance Act permits U.S. intelligence agencies (including the CIA, NSA, and FBI) to conduct surveillance of people who are: 1) not United States persons (a term of art including U.S. citizens, lawful permanent residents, U.S. corporations, and some unincorporated associations); and 2) not located in the United States. Those agencies can compel U.S.-based providers of electronic communications to turn over records and communications without individualized court orders. The law expires at the end of 2023, and the debate is on in Congress as to whether it should be reauthorized. The intelligence agencies say that Section 702 is critical to gathering intelligence that allows the U.S. security apparatus to counter spies, terrorists, and cyber actors. Civil liberties advocates argue that the law is too broad because it permits the collection and analysis of Americans’ communications without a court order.
The Justice Department is on an offensive advocating reauthorization. This morning, the Assistant Attorney General for National Security, Matt Olsen, spoke at the Brookings Institution arguing powerfully that Section 702 enables disruption of terrorist threats and is the Intelligence Community’s “most valuable national security legal tool.” Attorney General Merrick Garland also sent a letter to Congress pushing for reauthorization. Mr. Garland pointed that intelligence collected via Section 702 has enabled the identification of foreign ransomware attacks against U.S. infrastructure, played a role in the operation against Al-Qaeda leader Ayman al-Zawahiri, impeded foreign adversaries recruitment of spies in the United States, and identified and contributed to the disruption of threats to U.S. troops abroad as well as terrorist threats inside the United States.
For additional reading, the New York Times has an explainer on Section 702 and the reauthorization process. Wired also has an informative article on the law’s reauthorization.