Speaking at an American Bar Association luncheon last week, FBI Director Christopher Wray warned about the “mafia-like tactics” that foreign adversaries and terrorist groups are planning against the U.S. These include terrorist attacks against Jewish communities, Russia’s targeting of critical infrastructure, and increased cyberattacks from China. In light of these looming threats, it’s a relief that the House passed a reauthorization of Section 702 of FISA without some controversial restrictions – hyped by both privacy zealots on the left and MAGA supporters on the right – that would have effectively crippled the ability of the FBI to access and utilize critical intelligence obtained by the program. Thankfully, the center (and some sanity) has been able to hold, at least so far.
The controversy over Section 702 results, in my opinion, from the fact that it’s a technical and wonky surveillance tool that most of the public doesn’t understand, leaving a major vacuum to mischaracterize it as a “warrantless surveillance program against Americans.” The irony is that Section 702 was a statutory framework created to remedy warrantless surveillance against Americans.
To understand how, let’s go back to the beginning. You’ve probably heard of the Foreign Intelligence Surveillance Act, or FISA, which was passed in 1978. FISA creates a secret court that approves orders allowing the executive branch to conduct electronic surveillance on foreign powers or agents of a foreign power. To be clear, it does not grant a Fourth Amendment “warrant.” Remember that the Fourth Amendment protects you and me against unreasonable searches and seizures. FISA reflects an understanding that surveillance done for national security purposes requires a balancing of government interests against civil liberties to determine whether it is reasonable. That is the purpose of the FISA court: Once it believes that the government’s need to surveil a target to obtain foreign intelligence is reasonable, it issues an order (not a warrant!) that allows the government to go to a communications service provider and require them to collect the communications on the given target.
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