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The Guardian - US
The Guardian - US
Nick Robins-Early

What is Fisa, and what does it mean for no-warrant spying?

Stock photo of white hands typing on a keyboard in front of a monitor with blue code.
Both progressives and libertarian-leaning conservatives view the law as a violation of privacy rights and civil liberties. Photograph: Artur Marciniec/Alamy

Congress spent the past week in a fractious debate over a major government surveillance program that gives US authorities the ability to monitor vast swaths of emails, text messages and phone calls without a warrant. In a vote on Friday, lawmakers ultimately decided to keep that warrantless surveillance intact and passed a two-year reauthorization of the law, known as section 702 of the Foreign Intelligence Surveillance Act, or Fisa.

The law has long been contentious among both progressives and libertarian-leaning conservatives who view it as a violation of privacy rights and civil liberties. Donald Trump has likewise lambasted it out of personal grievance. Its defenders, which include intelligence agencies and Joe Biden’s administration, argue that it is an important tool in stopping terrorist attacks, cybercrime and the international drug trade.

What is section 702 of Fisa?

Section 702 is a measure added in 2008 to the Foreign Intelligence Surveillance Act, first passed in 1978, which allows authorities, including government agencies such as the NSA and FBI, to collect and monitor communications. More specifically, it gives them the authority to surveil the messaging of foreign citizens outside US soil and to do so without requesting a warrant.

Although section 702 was ostensibly intended to be used to monitor foreign terrorist groups and criminal organizations, law enforcement agencies have also used its authority to collect and surveil US citizens’ communications. This is because Americans messaging with people abroad are also liable to have their data accessed, which has led to improper use of the law and allegations from civil liberties groups that it gives authorities a backdoor into warrantless searches.

The law emerged from the George W Bush administration’s post-9/11 surveillance policies, adding government oversight to a secret program that had been monitoring foreign communications for years without formalized congressional approval.

Why is section 702 so divisive?

Section 702 has opponents on both sides of the political spectrum, with its critics especially concerned over the law’s ability to conduct warrantless searches of American citizens’ communications and law enforcement’s tendency to improperly overreach in its use.

Under section 702, authorities are only supposed to be able to search databases of communications for US citizens if they believe that the query could yield intelligence on malicious foreign actors or proof of a crime. But between 2020 and early 2021, the FBI improperly used section 702 almost 300,000 times in searches that targeted January 6 suspects, racial justice protesters and other American citizens, according to documents from Fisa court.

That misuse gave new life to calls for reforming section 702, potentially including requiring authorities to get a warrant from a judge before accessing US citizens’ communications. Civil liberties groups demanded numerous revisions, including closing loopholes that allowed the government to purchase information on US citizens through third-party data brokers.

Donald Trump’s campaign also reignited criticism of section 702, especially among far-right Republicans who tend to operate in lockstep with his pronouncements. The former president demanded that lawmakers “KILL FISA” in a post on Truth Social on Wednesday and accused authorities of using it to spy on his campaign – an apparent reference to an FBI investigation of a former campaign adviser of his that was unrelated to section 702.

Defenders of the law argued that there were already adequate provisions for stopping its misuse, and that requiring warrants or killing section 702 entirely would severely limit authorities’ ability to stop terrorist attacks and other crimes. Administration officials and backers of the reauthorization cited numerous US adversaries, from Chinese government spying operations to Islamist extremist groups, as reasons that warrantless surveillance was necessary for stopping urgent threats.

What happens to section 702 now?

The reauthorization of Fisa on Friday means that the program and warrantless surveillance will be able to continue for at least another two years. An amendment that would have required authorities to get a warrant for searches of US citizens narrowly did not pass, with a House vote ending in a 212-212 tie that resulted in its failure.

While the law was originally intended to be renewed for five years, Mike Johnson, the Republican speaker of the house, was forced to seek only a two-year reauthorization to mollify far-right GOP members who threatened to quash the bill entirely.

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