HomePoliticsWhat is Fisa and what does it mean for warrantless espionage?

What is Fisa and what does it mean for warrantless espionage?

Congress spent the past week in heated debate over a major government surveillance program that gives U.S. authorities the ability to monitor large amounts of emails, text messages and phone calls without a warrant. In a vote on Friday, lawmakers ultimately decided to keep that unwarranted surveillance intact and approved a two-year reauthorization of the law known as Section 702 of the Foreign Intelligence Surveillance Act, or Fisa.

Related: The US House of Representatives votes to reauthorize the law that allows unauthorized surveillance of citizens

The law has long been controversial among both progressives and libertarian-leaning conservatives, who view the law as a violation of privacy rights and civil liberties. Donald Trump has also criticized it out of personal spite. Its defenders, including intelligence agencies and Joe Biden’s administration, argue it is a key tool in stopping terrorist attacks, cybercrime and the international drug trade.

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What is section 702 of Fisa?

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

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Although Section 702 was ostensibly intended to monitor foreign terrorist groups and criminal organizations, law enforcement agencies have also used its authority to collect and monitor the communications of U.S. citizens. This is because Americans who message people abroad also risk having their data accessed, which has led to improper use of the law and accusations from civil liberties groups that it gives authorities a backdoor for unwarranted searches .

The law grew out of the George W. Bush administration’s surveillance policies after September 11, adding government surveillance to a secret program that had for years monitored foreign communications without formal authorization from Congress.

Why is Section 702 so divisive?

Section 702 has detractors on both sides of the political spectrum, with critics primarily concerned about the law’s ability to conduct unwarranted searches of U.S. citizens’ communications and the tendency of law enforcement agencies to inappropriately overreach reach in its use.

Under Section 702, authorities may only search databases of communications for U.S. citizens if they believe the search could yield information about malicious foreign actors or evidence of a crime. But between 2020 and early 2021, the FBI improperly used Section 702 nearly 300,000 times in searches targeting Jan. 6 suspects, racial justice protesters and other U.S. citizens, Fisa court documents show.

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That abuse gave new life to calls to reform Section 702, which could require authorities to get a judge’s order before gaining access to U.S. citizens’ communications. Civil liberties groups demanded numerous revisions, including closing loopholes that allowed the government to purchase information on U.S. citizens through third-party data brokers.

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

Defenders of the law argued that there are already adequate provisions in place to stop its abuse, and that requiring warrants or killing Section 702 outright would severely limit authorities’ ability to stop terrorist attacks and other crimes. Administration officials and backers of the reauthorization cited numerous U.S. adversaries, from Chinese government spy operations to Islamist extremist groups, as reasons why unwarranted surveillance was necessary to stop urgent threats.

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What happens now to Section 702?

Fisa’s reauthorization on Friday means the program and warrantless surveillance can continue for at least another two years. An amendment requiring authorities to obtain a warrant to search the homes of American citizens narrowly failed to pass. The vote in the House of Representatives ended in a 212-212 tie, leading to a failure.

Although the law was originally intended to be extended for five years, Mike Johnson, the Republican Speaker of the House of Representatives, was forced to request only a two-year reauthorization to mollify far-right Republican members who threatened to kill the bill entirely. destroy.

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