Congress is considering whether to reapprove Section 702 of the Foreign Intelligence Surveillance Act that the intelligence community uses to collect information about terrorists, weapons proliferation, cyber-security threats and more. It’s a warrantless surveillance program that evidence shows has been misused and some lawmakers have said they won’t give their approval until they see reforms at the FBI. 

How Section 702 is used 

Intelligence officials may only collect information on non-U.S. persons who are located abroad and expected to possess, receive, or communicate foreign intelligence information. 

They may not target U.S. citizens, regardless of their location. They may not target anyone on U.S. soil, or a foreigner with hopes of collecting intel on an American, which is called reverse targeting. 

To sum it up – Americans are protected by the Fourth Amendment, foreigners on foreign soil are not. 

What the intelligence community says 

The Office of the Director of National Intelligence Describes Section 702 as a crucial tool. It helped America take out Hajji Iman, who was second in command of ISIS. 702 intelligence helped officials determine his location and send in the armed forces. 

FBI Director Christopher Wray also said 702 is indispensable and that it has helped the U.S. fend off cyber attacks from adversaries including Russia, Iran and especially China. 

“Almost everyday through our 702 intelligence efforts, we see evidence of China’s efforts to surveil and steal information about our military, about our advanced technologies, to hack our critical infrastructure and even to run influence and intimidation campaigns against Americans and Chinese dissidents here,” Wray testified to Congress. “And so without 702 the intelligence community would be blinded in a ever evolving digital world.”

Lawmakers’ concerns over misuse 

There is evidence the program hasn’t always been used as intended. 

An October 2018 opinion by a federal judge stated, “the government has reported a large number of FBI queries that were not reasonably likely to return foreign-intelligence information or evidence of crime.” That includes searches that could pick up information on Americans. 

FBI Director Wray was asked if that’s acceptable during a congressional hearing. 

“I think the judge’s opinion speaks for itself that it was not. I would say that it’s important the court did not find unlawful purpose or bad faith or anything like that. But that doesn’t make it any less unacceptable to me,” Wray said. “The compliance incidents at issue all predate massive changes that have been made by my leadership team and I since then.” 

Wray said the changes, which include an office of internal audit, have dramatically improved compliance. But lawmakers have still expressed doubts. 

“We understand, many of us, how important this program is, to what the intent of it is. But I guess in laying out your changes, your reforms, what you’ve done, I’m not sure we up here understand that. I’m not sure the FBI has done a very good job in laying out that framework,” Rep. Darin LaHood, R-Ill., told Director Wray during a House Intelligence Committee hearing.

”How do you reassure or give confidence to the American people that civil liberties are going to be protected,” LaHood asked.

The Justice Department and intelligence community made an initial offer to Congress – extend the program largely as is. But that was quickly shot down, and lawmakers indicated they may be willing to negotiate FISA rules all the way up to the reauthorization deadline of Dec. 31.