The Foreign Intelligence Surveillance Act (FISA) has been back in the news. FISA allows the U.S. to conduct surveillance of America’s foreign adversaries to prevent terror attacks and the law must be periodically renewed.
FISA, passed in 2008, is a critical part of America’s national security but distinct from the 2001 Patriot Act, passed by Congress immediately after 9-11. 9-11 permanently changed the way Americans regarded the risk of terrorism and the legal measures they would tolerate to prevent it. FISA is part of that change.
FISA Section 702 permits the government to compel major U.S. media, tech, and telecom companies to assist in the targeting of non-U.S. persons located outside the United States to collect foreign intelligence information.
One disagreement involves the “backdoor search” loophole wherein Section 702 allows U.S. intelligence agencies to conduct warrantless surveillance of foreign targets (i.e., outside of the U.S.). The problem arises when those foreigners communicate with Americans, enabling intelligence agencies to gather private data, emails, and phone calls of U.S. citizens. Critics argue that the FBI and other American intelligence agencies then act upon these (presumably, inadvertently) collected communications of American citizens without a warrant—or probable cause determination—as would routinely be required in a criminal investigation of an American citizen.
There are documented past abuses to justify this criticism.
Federal intelligence agencies have repeatedly been found to have improperly used Section 702 databases to gather information on Americans, including members of Congress, journalists, protesters, and criminal suspects unconnected to national security. This is to say nothing of the persecution of presidential candidate Donald Trump as well as President Donald Trump.
As The Heritage Foundation has stated “during his 2016 campaign, the FBI obtained warrants under FISA to surveil Carter Page, a foreign policy adviser to the Trump campaign. A subsequent Department of Justice Inspector General Report identified fundamental errors and omissions in the warrant applications. The DOJ ultimately admitted that at least two of the four FISA applications lacked probable cause.”
We can also never forget the terrible handling of the Steele Dossier leading to the $32 million Russia Hoax investigation “wherein the applications relied heavily on unverified intelligence compiled by former British intelligence officer Christopher Steele. The FBI failed to inform the FISA Court that Steele’s research was funded by political opponents and failed to include countervailing intelligence or source inconsistencies.”
Notwithstanding, FISA 702 is a very valuable intelligence tool.
According to Center for Strategic and International Studies (CSIS), “lawmakers established 702 when it became clear that terrorist groups outside the United States were using U.S.-based telecoms infrastructure to communicate, making those communications a legitimate target for U.S. intelligence agencies. However, lawmakers also recognized that U.S. citizens were using those same pipes and could not be distinguished from foreign sources. So, Congress wanted extra protections in place to protect the communications of U.S. citizens, specifically moving away from “bulk” data collection and instead requiring that Section 702 users already have a specific email address or phone number to search the collection in a laser-targeted way.” (E. Harding, CSIS, 04-24, 2026).
CSIS continues that, with those protections in place, “the program has been hugely impactful. It has prevented terror attacks, thwarted international criminal groups, Russian cyberattacks, Chinese spies, and fentanyl trafficking.” In fact, “… in the 2023–2024 cycle, 100 % of the president’s intelligence priorities and topics reported on by NSA were supported by Section 702–derived intelligence.” (George Croner).
So, on one hand, if we completely defer to the federal government every time some serious-sounding, blue-suited government employee declares that the violation of a constitutional right is justified “as a matter of national security,” we will eventually lose our constitutional rights. On the other hand, if we are too restrictive of intelligence agencies as they legitimately surveil foreign enemies who are planning to do harm to the U.S.—and, while so doing, inadvertently sweep up the private communication of an American citizen—we may face another 9-11.
It may not be possible to swiftly gather intelligence on a foreign enemy without also collecting information about the people with whom that foreign adversary communicates, including a non-targeted American citizen. So, we must find a way to address both considerations, privacy, and security.
Ultimately, the honest administration of Section 702 won’t occur through words in a federal statute. Rather, Americans are dependent upon the ethics, personal morality, and commitment to the U.S. Constitution of those U.S. government officials who administer the law.
Shreveport attorney, Royal Alexander, worked in D.C. in the U.S. House of Representatives for nearly 8 years for two different Members of Congress from Louisiana.