President Trump signed the FISA Amendments Reauthorization Act on January 19, 2018, reauthorizing the mass surveillance provisions of the Foreign Intelligence Surveillance Act (FISA) through December 31, 2023.Footnote ¹ The Act renewed Title VII of FISA and most notably its Section 702, which provides for the surveillance of foreign targets located outside the United States.Footnote ² The six-year reauthorization faced opposition from lawmakers and advocates concerned for Americans’ privacy interests, although Trump “would have preferred a permanent reauthorization of Title VII to protect the safety and security of the Nation.”Footnote ³

FISA was originally enacted in 1978, authorizing electronic surveillance in order to gather foreign intelligence information on “agent[s] of foreign powers” considered a potential threat to U.S. national security.Footnote ⁴ It was subsequently amended several times, including by the USA PATRIOT Act following the September 11, 2001 terrorist attacks.Footnote ⁵ Consistent with that history, the Trump administration similarly highlighted recent terrorist attacks as reason for why the reauthorized foreign intelligence gathering is essential for national security.Footnote ⁶

Section 702 is a controversial portion of FISA as it allows the National Security Agency (NSA) to collect from U.S. companies the communications of foreign targets abroad—which in turn may include communications with U.S. persons—without obtaining a warrant. Congress first enacted Section 702 in 2008 so that the government could obtain communications of foreign targets located abroad without having to secure individual judicial approval for the surveillance.Footnote ⁷ Instead, the specialized court created by FISA approves “annual certifications” submitted by the attorney general and the director of national intelligence of what is frequently called “702 collection” of communications.Footnote ⁸ The certification permits the U.S. intelligence community to “target non-U.S. persons reasonably believed to be located outside of the United States to acquire certain categories of foreign intelligence information.”Footnote ⁹ Section 702 (as with Title VII more generally) was originally set to expire on December 31, 2012,Footnote ¹⁰ and was reauthorized for another five years in 2012.Footnote ¹¹

Section 702 does not permit the targeted surveillance of U.S. persons.Footnote ¹² Nevertheless, opponents of Section 702 point out that the collected communications of foreign individuals abroad would include any communications they have with U.S. citizens, which constitutes a warrantless search and implicates significant privacy concerns for those U.S. citizens.Footnote ¹³ The intelligence community has previously tried to address some of these concerns by instituting certain policy changes. For example, the NSA stated in April 2017 that it would “no longer collect certain internet communications that merely mention a foreign intelligence target” in order “to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.”Footnote ¹⁴ Despite this policy shift, 702 collections could still gather communications to or from a U.S. person in direct contact with a foreign intelligence target.

Concerns for the privacy of American citizens sparked unique alliances in Congress during debate over FISA reauthorization. “Some of the most conservative Republicans in the House joined with some of the most liberal Democrats” to fight for additional privacy protections by amending the proposed legislation.Footnote ¹⁵ Indeed, a bipartisan substitute bill introduced in the Senate in January 2018, known as the “USA Rights” Act, would have required a warrant to search through any records collected in the NSA database under Section 702 that contain communications from U.S. citizens.Footnote ¹⁶ The White House opposed this alternative,Footnote ¹⁷ which did not prevail. On January 11, the House passed the Reauthorization Act with only modest additional privacy protections—described below—by a vote of 256 to 164,Footnote ¹⁸ and the Senate by a vote of 65 to 34 on January 18.Footnote ¹⁹

The final Act provides some additional requirements for the use of surveillance acquired under Section 702 in criminal cases. Law enforcement agents must now obtain a court order when doing certain searches of communications gathered through 702 collection when these searches are “in connection with a predicated criminal investigation” not related to national security.Footnote ²⁰ This requirement is subject to certain exceptions. Law enforcement agents do not need to procure a court order if “there is a reasonable belief that such contents could assist in mitigating or eliminating a threat to life or serious bodily harm.”Footnote ²¹ Further, any evidence procured under Section 702 regarding a U.S. person can still be used as evidence in a criminal proceeding without a court order if the proceeding involves certain enumerated crimes, including death, kidnapping, cybersecurity, and human trafficking.Footnote ²²

Despite his apparent misgivings,Footnote ²³ Trump signed the Act into law on January 19, 2018. With respect to Section 702 in particular, Trump explained why such extraterritorial surveillance was important:

In hopes of assuaging concerns expressed by privacy advocates, he further underscored that Section 702 only permits the surveillance targeting of “foreigners located abroad” and not U.S. citizens.Footnote ²⁵