Shortly after the scheduled sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) at midnight on April 19, 2024, the Senate passed the Reforming Intelligence and Securing America Act (RISAA), rescuing America’s most important foreign intelligence collection program from extinction and renewing it for two years. The legislation capped the most contentious debate over the renewal of Section 702 (or “702”) since its passage by Congress in 2008, and the two-year sunset included in RISAA represents the shortest extension ever included in a congressional renewal. The brevity of the extension presages that the debate over Section 702’s future will accelerate quickly through 2025 so that the RISAA is less a final judgment on 702 and more like a modest reprieve for the program.
With Section 702 scheduled to sunset again in April 2026, the fight over its future will likely come to a boil beginning in early 2025 when debate over several of the most controversial issues from the recently concluded legislative battle will resume. The most combative of those issues revolves around the “incidental” acquisition of the communications of those U.S. persons (USPs) communicating with foreigners outside of the U.S. who are targets of Section 702 collection, and the subsequent accessing of those incidentally collected USP communications by the government. From 702’s inception, privacy and civil liberties advocates have insisted that government access to these incidentally-acquired USP communications be predicated upon first securing a warrant, but the government, and the President’s Intelligence Advisory Board (PIAB), have argued that such a requirement is “unjustified” and would cripple the program’s effectiveness.
In the aftermath of past reauthorization cycles, the outcome of the next debate over continuing Section 702 was often predictable. However, the narrow votes approving 702’s most recent renewal in both chambers of Congress suggest that 702’s reauthorization in its current form in 2026 is far from assured. In particular, the perpetual demand from critics for a warrant requirement failed by the narrowest of votes and will certainly be at the forefront of revisions sought in 2026. Both current events and history demonstrate that it is unlikely that the dangers and uncertainties in world events that make the foreign intelligence gathered by Section 702 so important to the nation’s security will abate. Thus, it is prudent to consider the factors most likely to impact the debate over Section 702’s next reauthorization lurking less than two years into the future. Such an assessment is predicated upon both the domestic political environment and international security threats, and the domestic political arrangement – at least in terms of the composition of Congress and the occupant of the presidency – will be set less than six months from now in the November elections. Therefore, it is by no means too early to examine the factors that, for now, have the reasonable potential to impact the next debate over the reauthorization of FISA Section 702.
Politics and Strange Political Bedfellows
As the politics impacting the recent Section 702 debate showed, the overriding element of uncertainty regarding any future renewal of the 702 program lies in the composition of the political branches of government. In the just concluded reauthorization cycle, for example, members of the House Freedom Caucus acquiesced in 702’s renewal only after the Speaker of the House agreed to limit 702’s extension to two years so that the program’s next renewal would arise during a presumptive Trump Administration. If events produce a second Trump presidency, and if Trump persists in his “incoherent” desire that Congress “KILL FISA,” it is entirely possible that a Trump Administration will forego seeking congressional reauthorization of Section 702 or seek renewal of the program in a significantly altered form. Even a tepid endorsement by Trump will encourage the odd coalition of privacy and civil liberties advocates and far right Republicans that opportunistically opposed Section 702 during the recently concluded debate to reassemble for another assault that could eliminate or undermine 702’s agility as an intelligence tool.
Conversely, having vigorously advocated for Section 702’s renewal during this most recent reauthorization cycle, a second Biden Administration will presumably seek to have Congress again renew the collection program in 2026. That effort will undoubtedly face opposition from that same opportunistic coalition of right-wing Republicans and entrenched privacy and civil liberties advocates that mounted such a vigorous challenge to Section 702’s recent renewal; but, a second Biden Administration offers reasonable assurance that reauthorization of the program will be pursued in something largely resembling its current form. Consequently, it is no stretch to suggest that the fate of America’s most important foreign intelligence collection program is among the numerous critical national issues on the ballot in the upcoming presidential election.
RISAA’s Extensive Reforms and Their Impact on Section 702 Reauthorization in 2026
Despite criticisms from opponents who failed to achieve many of their objectives in the recent reauthorization debate, it is essential to recognize that RISAA embodies the most extensive set of substantive reforms to the program’s operation included in any renewal of Section 702 since its passage by Congress in 2008.
Addressing widespread criticism of the FBI’s execution of 702, particularly with respect to the FBI’s querying of the database of lawfully acquired Section 702 communications, RISAA specifically includes a series of required approvals, restrictions, and substantive training and reporting protocols directed to FBI querying practices including:
(1) every FBI query using a U.S. person (USP) identifier receive supervisory or attorney approval; (2) political appointees be excluded from the query prior approval process; (3) mandatory audits of FBI USP queries must be conducted by the Department of Justice within 180 days; (4) annual training on FBI querying procedures for all FBI personnel involved in querying the 702 data base of acquired communications; (5) prior approval by the FBI Deputy Director for all queries involving elected officials. Political candidates, political organizations, or U.S. media organizations; (6) notification to Congress and the individuals involved for any query reasonably believed to identify a member of Congress; (7) additional prior approvals for queries involving religious organizations or “batch” queries; (8) all queries using USP identifiers require a prior written statement containing the specific factual basis supporting the query; (9) requirement that the FBI maintain a record of every USP query term used, the date the query was conducted, the identity of who conducted the query, and the written statement furnishing the specific factual basis for the query; (10) requirement that FBI data systems be configured so that personnel must affirmatively opt in to systems containing unminimized Section 702-acquired communications; (11) “Evidence of Crime” only queries are prohibited (except when undertaken to mitigate or eliminate a threat to life or serious bodily harm); (12) FBI data repositories may ingest only those 702 communications relevant to existing, open, fully predicated national security investigations; (13) mandated development and implementation of accountability standards for FBI querying requiring, at minimum (a) zero tolerance for willful misconduct, (b) escalating consequences for unintentional noncompliance, and (c) required consequences for supervisors overseeing those who engage in noncompliant querying; and (14) detailed annual reports to Congress identifying the accountability actions taken with respect to any noncompliant querying.
Some of the measures found in RISAA reflect statutory inclusion of actions already initiated by the FBI, and both statistical reports and the Foreign Intelligence Surveillance Court (FISC) have acknowledged the positive impact of these actions on FBI querying activity. More detailed information on FBI querying is likely to be revealed in roughly 18 months when the report on FBI querying activities prepared by the Justice Department’s (DoJ) Inspector General (IG) and mandated by RISAA is due for submission to Congress. While the modest two-year extension of Section 702 will allow little time to digest the DoJ IG report or conduct a detailed analysis of the impact of RISAA’s requirements, continued improvement in FBI querying activities and meticulous adherence to those RISAA mandates must be viewed as essential by those advocating that 702 be renewed in 2026 in a form that preserves its unique flexibility as an irreplaceable intelligence tool. Anything less will materially encourage those who pressed so vigorously for, and came so close to adding, a warrant requirement to the panoply of reforms RISAA mandates governing 702 querying. If those reforms do not produce continuing improvements in the FBI’s querying activities, it is difficult to conjure a 2026 reauthorization scenario that does not result in a warrant requirement in some form.
The Revised Definition of “Electronic Communication Service Provider”
RISAA also amended the definition of “electronic communication service provider” (ECSP) contained within Section 702 – a change that prompted considerable angst among Section 702 critics and long-time congressional opponents of 702 like Senator Ron Wyden. The government initially proposed the revised definition to Congress after essentially being invited to do so by the Foreign Intelligence Surveillance Court of Review which acknowledged that the existing ECSP definition “is premised on Internet architecture now almost 40 years old.”
The revision has been reported as necessitated by shifting technological changes involving data centers and cloud computing issues. However, the government has refrained from a more detailed explanation implying that to do so would require the disclosure of classified information and the danger of “tipping off foreign adversaries.” That reticence has fed speculation and paranoia with some citing the ECSP definitional change as representing the “largest expansion of FISA in over 15 years.” Like so much other hyperbole directed at Section 702 during the recent reauthorization debate, this statement is untrue. The revised definition does not create authority to target any U.S. person – a practice that always has been indisputably prohibited by 702 – nor does it include authority to add even one more foreigner to those targeted by 702. In other words, it doesn’t expand “surveillance” at all. What it does is enlarge the scope of entities providing telecommunications services who are potentially eligible to receive a Section 702(i) “directive” from the government requiring that they provide (while being compensated at prevailing commercial rates and receiving a statutory release from any liability for such services provided ) the information, facilities and/or technical assistance needed to effectuate lawfully authorized 702 acquisitions directed against foreign targets who are using U.S. providers to send, receive or store their communications. Nonetheless, if the definitional revision to ECSP produces unanticipated changes in the circumstances under which U.S. telecommunication providers are required to assist in effectuating Section 702 acquisitions, the ECSP issue is likely to resurface in any debate over renewing 702 in 2026.
The Potential Impact of Court Rulings on Section 702
From Section 702’s inception, privacy and civil liberties advocates have argued that the collection program violates the Fourth Amendment rights of those Americans whose communications are incidentally collected when communicating with foreign targets, and sought to use the courts to further that argument. Every court to have considered the issue has concluded that this incidental collection does not violate the Fourth Amendment. In recent years, however, the privacy and civil liberties contingent has revised its Fourth Amendment argument to insist that the use of USP identifiers to query the Section 702 data base after the communications of foreign targets are lawfully acquired constitutes a separate “backdoor” search. They point to a 2019 Second Circuit decision that, they claim, substantiates that querying should be viewed as requiring a separate Fourth Amendment inquiry.
Hasbajrami, the Second Circuit case relied upon by 702 opponents, suggests that querying may implicate privacy issues worthy of separate Fourth Amendment analysis, but the court acknowledged that it could not actually address those issues on “the sparse record presented.” The case was remanded to the district court to conduct an inquiry into the querying issues and that remand, issued over 4 years, ago has produced no further reported decision. No other court has joined the Second Circuit’s dicta on querying and the FISC, which addresses Section 702 issues more frequently than all other federal courts combined, has consistently rejected Hasbajrami’s querying dicta insisting, instead, that the querying process does not precipitate a separate Fourth Amendment inquiry but is properly evaluated in the context of the overall reasonableness of the procedures governing the 702 acquisition.
Consequently, while the current state of judicial caselaw rejects the argument that querying requires a separate Fourth Amendment review. any future federal court ruling(s) supplying oxygen to the idea that the querying process initiates a separate Fourth Amendment analysis could materially impact the 2026 debate over whether a court order is required prior to initiating queries using USP identifiers.
Thoughts on the Government’s Approach to the 2026 Renewal of 702
There are lessons to be learned from the recently concluded Section 702 reauthorization cycle. The Biden Administration supported reauthorization and steadfastly resisted efforts to saddle Section 702 with a warrant requirement that would have hamstrung 702’s unique flexibility as an intelligence tool, but that support was almost too little and too late. While Matt Olsen, the head of the DoJ National Security Division, and Josh Geltzer at the National Security Council were steady, vigorous and effective advocates for 702, the case for reauthorization would have benefitted from early and repeated public endorsements from the National Security Advisor, the Director of National Intelligence, and, ultimately, the President. Recognizing that such advocacy involves careful calibrations on the expenditure of political capital, still there are substantial risks to keeping your powder dry when the future of the nation’s most important foreign intelligence collection program teeters in the balance. Consequently, coordinated planning for the 2026 reauthorization cycle should begin in the executive branch early in 2025 and should be well underway by the time the DNI’s 2025 Annual Statistical Transparency Report reflecting 2024 Section 702 activity is publicly released at the end of April 2025.
Thematically, the days have passed when terrorism so thoroughly dominated U.S. national security policy that Section 702’s value as a counterterrorism tool could be substantiated largely by apocalyptic claims that there would be “blood in the streets” without it. Advocating for 702’s renewal today is more effectively presented in broader terms that reflect its importance in furnishing critical, time-sensitive foreign intelligence information on a panoply of national security concerns ranging from the wars in both Ukraine and the Middle East to the Houthis firing missiles at ships in the Red Sea. This advocacy must also clarify Section 702’s materiality to informing U.S. policymakers on China’s saber rattling at Taiwan, North Korean nuclear proliferation, cyberattacks directed at critical U.S. institutions and infrastructure, counternarcotics efforts including combatting fentanyl trafficking, and to its significant role in protecting the integrity of U.S. elections. Critically, such rhetorical advocacy should be supplemented by specific examples demonstrating 702’s value – in classified settings where necessary but, wherever and whenever possible consistent with national security, in some form of public disclosure.
Querying matters aside, one other issue that the government should anticipate resurfacing in the next reauthorization cycle is a renewed demand for statistical details regarding the scope of incidental collection of USP communications. While the topic remained largely on the periphery of the recent702 renewal and is unaddressed by RISAA, some perpetual Section 702 opponents, like Senator Ron Wyden, have long considered the “key question” in any consideration of 702’s renewal to be: “How many law-abiding Americans are having their communications swept in all that collection?” Considering that technological advancements may soon offer methodologies that produce an actual number, or some informed numerical range, for measuring the scope of this incidental collection, calls for disclosure of this metric will escalate. Congress may be unwilling to endorse Section 702’s future reauthorization without production, or at least a definitive timetable for production, of the “incidental” collection data.
Finally, prudence and considerations of appropriate “official” action can serve to restrain government officials in responding to hyperbolic allegations and mischaracterizations by Section 702 critics that, at times, are flatly untrue. It would behoove any executive branch effort organized to promote the reauthorization of Section 702 in 2026 to utilize the efforts of “outside” proponents. They should unhesitatingly encourage the efforts of these proponents who recognize the importance of renewing Section 702 to directly and frankly respond where critics propagate questionable assertions about 702’s constitutionality, operational use, and intelligence value.
Section 702 is the only part of FISA required to run the gauntlet of these recurring reauthorization cycles – a misguided burden now compounded by congressional dysfunction that only weeks ago left America’s most valuable foreign intelligence collection program teetering on the brink of extinction. RISAA provides an essential reprieve, but its exiguous two-year extension assures that the next reauthorization cycle is already underway. The ride for those who recognize 702’s irreplaceable value promises to be a bumpy one.
George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on Twitter (@GeorgeCroner) and find a list of his publications at FPRI.org. Read his full bio here.
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