In America : Balancing National Security and Privacy: The Section 702 Dilemma
Government actions that violate the First and Fourth Amendments, often justified in the name of protecting national security, have a long and contentious history in the United States. From the FBI’s COINTELPRO scheme (which targeted political activists and “subersives”) to Nixon’s Watergate scandal (which highlighted severe abuse of surveillance by the executive and brought about a bi-partisan push for more oversight and transparency), the extralegal surveillance of “subversive” elements of society has also been a contentious subject within national security legislation.
Among laws meant to curtail this, the Foreign Intelligence Surveillance Act of 1978 was established as a federal law to set clear procedures for domestic surveillance and the collection of foreign intelligence through a surveillance court that issues requested warrants. These warrants are issued. The issue with such Acts is that by their very nature, they often fall prey to legislative hijacking, which occurs when additional amendments slowly steer them away from their original intent to serve various political agendas.
Some notable examples within the significant amendments to FISA that weakened its constitutional safeguards include the 2001 PATRIOT Act, which expanded FISA to empower domestic Law enforcement and foreign intelligence to obtain personal records of American citizens not directly linked to terrorism. Then came the 2001 Protect America Act, which successfully pushed for removing the requirement of “probable cause” for surveillance, allowing warrantless surveillance. That is, requiring a demonstrably fair probability or substantial chance that a suspect is actually engaged in suspicious activity or has committed a crime.
But the most relevant of these amendments is the 2008 Section 702 FISA Amendment Act, which created the framework for backdoor searches of “incidentally collected” American communications without warrants and helped build out the NSA’s PRISM program that was later disclosed by Snowden, for surveillance, allowing warrantless surveillance. These backdoor queries search through classified databases of information collected under Section 702 of FISA for the communications of American citizens, without a warrant.
However, the warrantless surveillance is limited by Section 702 legislation to Americans who have some form of communication with a foreign target of surveillance. This is defined as a foreign power or an agent of a foreign power, which includes foreign governments, terrorist groups, and individuals acting on their behalf. The government must demonstrate probable cause to a court that a target meets this definition to conduct surveillance to collect foreign intelligence legally. Furthermore, this also extends to foreign-based political organizations. And the legal application of “incidental” collection of data from American citizens as a necessary happenstance puts the onus on investigators or commissions to prove that “reverse-targeting” (the illegal act of targeting a foreign individual of interest, someone with the intention of collecting information about a US person) is taking place.
Section 702 needs to be renewed yearly by law, and reauthorizations have historically been how Congress has amended the section. Moreover, each of those aforementioned Acts arguably violates the Fourth Amendment, which explicitly states “(...)and no warrants shall issue, but upon probable cause(...)”. They enabled warrantless searches, surveillance, and “retroactive justification for surveillance programs”. Furthermore, the reduction of judicial oversight through a shift towards programmatic approval (instead of ad hoc reviews by a judge) and “secret interpretations” of surveillance authority empowers all three branches of the government to operate a surveillance apparatus beyond the vigil of the American people, some critics have argued.
But the practical realities of such expansive surveillance programs imply that a strict interpretation of FISA and the non-renewal of Section 702 would create too much red tape and cripple the very tools needed for a functioning intelligence apparatus. Even the Presidential Daily Brief depends heavily on Section 702-based programs, with over 59% of its articles containing Section 702-enabled information as reported by the NSA in 2022. The need for real-time threat detection and counterintelligence in the age of Great Power competition and subconventional warfare has been compounding over the years. And transnational crime, such as sophisticated fentanyl distribution networks, requires efficient data collection to effectively combat.
The US government is expected to protect citizens from terrorist threats and espionage, to prevent such perils, Congress pushed for Acts that would empower the government to effectively protect national security and economic interests. As demonstrated, reconciling the inherent tension between the constitutionally enshrined protections and the tangible need for surveillance is a delicate balancing act, with the judiciary acting as an arbiter of where the balance ought to lie.
The judiciary often serves as a referee, weighing government interests against individual rights. For example, in the 2025 Supreme Court case DHS v. D.V.D., the court ruled against deporting a suspect without proper proceedings, citing due process violations. The judiciary serves to signal a tradition of transparency, with checks and balances in place to safeguard this transparency and the political power it imbues upon citizens. Yet the relatively recent use of artificial intelligence in government surveillance, such as the initiatives by the Department of Government Efficiency, has embedded AI-based decision-making within surveillance operations on a large scale, creating an environment where algorithmic bias and programmatic targeting are difficult to combat, or even identify, due to the opaque nature of the LLMs used. This has led to some pushback. For example, the Republican representative Anna Paulina introduced the American Privacy Restoration Act earlier this year, which seeks to repeal the 2001 PATRIOT Act. Luna, along with her congressional supporters, sees the Act as a dangerous step that “empowers vast, unaccountable surveillance” and emboldens intelligence agencies that have abused it to bypass privacy protection. Luna also criticized the reauthorization of Section 702 of FISA, which permits warrantless surveillance. She claims it was weaponized and warns that some lawmakers prioritize intelligence agencies over constitutional liberties.
Without robust safeguards, the future may see privacy rights diluted not by overt legislation, but by silent technological drift. The Foreign Intelligence Surveillance Court, established by FISA, was designed to provide judicial oversight for surveillance targeting foreign powers and agents within the United States in a way that would provide the necessary transparency. Its utility lies in offering a legal framework for the intelligence community to get warrants for electronic and physical surveillance, thereby achieving the aforementioned balance. But the secretive nature of these ex parte proceedings removes direct accountability. The renegotiation that occurs during the yearly reauthorization proceedings in Congress presents both an opportunity and a challenge for stakeholders, with different incentives and current political landscapes, which is considered a proportionate compromise.
