Time-Limited Provisions of the Foreign Intelligence Surveillance Act Reauthorized Through 2023

Contemporary Practice of the United States Relating to International Law: Edited by Kristina Daugirdas and Julian Davis Mortenson

General International and U.S. Foreign Relations Law

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, 2023.¹The 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.²The 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."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FISA was originally enacted in 1978, authorizing electronic surveillance in order to gather foreign intelligence information on "agent[s] of foreign powers" considered a potential threat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.⁴It was subsequently amended several times, including by the USA PATRIOT Act following the September 11, 2001 terrorist attacks.⁵Consistent 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.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.⁷Instead, 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.⁸The 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."⁹Section 702 (as with Title VII more generally) was originally set to expire on December 31, 2012,¹⁰and was reauthorized for another five years in 2012.¹¹

Section 702 does not permit the targeted surveillance of U.S. persons.¹²Nevertheless, opponents of Section 702 point out that the collected communications of foreign...