FISA Section 702: Reform or Sunset

EPIC’s Work to Reform Section 702

FISA Section 702 authorizes surveillance programs targeting non-U.S. persons reasonably believed to be outside the United States to acquire “foreign intelligence information” with compelled cooperation of U.S. service providers. Importantly, Section 702 allows the government to conduct this surveillance without adhering to traditional FISA rules and without individualized court orders by the Foreign Intelligence Surveillance Court (FISC). And though the program targets non-U.S. persons abroad, it sweeps in an untold but significant amount of Americans’ communications, which agencies can then query.

While originally enacted as a temporary counterterrorism authority, government agencies have increasingly used Section 702 in a much wider set of contexts, including counternarcotics and cybersecurity. Section 702 has also become a tool for domestic surveillance. The FBI in particular has a history of “persistent and widespread” violations, with tens of thousands of improper searches, including searches for racial justice protestors, political officials, donors to a political campaign, and a state court judge.

EPIC has worked with a large, bipartisan coalition of civil society groups to put pressure on Congress to reform Section 702 as part of broader surveillance reform to ensure intelligence agencies cannot continue to exploit loopholes in surveillance authorities that compromise our privacy and civil liberties.

EPIC and our coalition partners have identified necessary reforms to Section 702 and other authorities. We have advocated for these reforms on the Hill and participated in briefings on Section 702 and related surveillance issues, educating members and their staff on the need for significant reforms. Many of these reforms are reflected in the three bills EPIC endorsed over the last year:

• The Government Surveillance Reform Act (GSRA) [S.3234/H.R.6262];
• The Protect Liberty and End Warrantless Surveillance Act [H.R.6570]; and
• The Security and Freedom Enhancement Act (SAFE Act) [S.3961].

EPIC and our coalition partners repeatedly called on the government and intelligence agencies to come to the table to discuss meaningful reforms, rather than proposing mere tweaks in the face of egregious and persistent abuses of these authorities.

However, despite the bipartisan support for government surveillance reform, leadership in Congress pushed through the Reforming Intelligence and Securing America Act (RISAA), H.R.7888, which reauthorized FISA Section 702 for two years. As EPIC, Brennan Center, and FreedomWorks found, RISAA was crafted to preserve the surveillance status quo, largely codifying current practice and procedures. Worse, amendments passed in the House and included in the final bill significantly expand FISA Section 702.

Although RISAA does more to expand and entrench warrantless government surveillance than rein it in, privacy champions in Congress got closer than ever to enacting significant reform. In the House, an amendment to close the Backdoor Search Loophole failed by a tied 212-212 vote. And while a data broker amendment was ultimately cleaved off from RISAA negotiations, the House passed the Fourth Amendment Is Not For Sale Act.

In the Senate, privacy champions fought for amendments to strengthen protections and strip out the expansion of warrantless surveillance. Although these amendments failed—due to fears over Section 702’s looming deadline and significant pressure from the White House—they developed a record on reform and will help set the foundation for the next reauthorization debate. The amendments included:

• An amendment by Sen. Rand Paul to append the Fourth Amendment Is Not For Sale Act (40-53);
• An amendment by Sens. Ron Wyden and Cynthia Lummis to strike a provision significantly expanding the universe of U.S. businesses subject to Section 702 surveillance (34-58);
• An amendment by Sens. Richard Durbin and Kevin Cramer to enact a narrow warrant requirement (42-50); and
• An amendment by Sens. Mike Lee and Peter Welch that would have strengthened the role of FISA Court amici, based on an amendment that passed the Senate 77-19 in 2020 (40-53).

Section 702 will sunset again in April 2026 if it is not reauthorized by Congress. Ahead of this next deadline, EPIC will continue to advocate for significant reform of this foreign intelligence surveillance authority.

See the rest EPIC’s major priorities for surveillance reform as part of the FISA Section 702 reauthorization process.