Legislation authorizing a key surveillance tool used by the nation’s spy agencies is up for renewal, triggering a fierce debate in Congress about whether or not it should be overhauled — or even allowed to expire.

What You Need To Know

  • Section 702 of the Foreign Intelligence Surveillance Act, which allows spy agencies to warrantlessly collect emails, text messages and other foreign communications, faces possible expiration at the end of the year

  • Proponents say that it can help the U.S., but there is concern among lawmakers from both parties that the statute has been abused

  • Democrats worry about Section 702's impact on civil liberties; Republicans have been angered by the FBI's investigation of possible ties between Russia and Donald Trump's first presidential campaign

  • A presidential board recommends that Section 702 be reauthorized, but with significant adjustments — the FBI wants it reauthorized in "a manner that does not diminish its effectiveness" while providing reassurance to the public

Section 702 of the Foreign Intelligence Surveillance Act allows spy agencies to collect emails, text messages and other communications of foreigners living abroad, all without a warrant.

When used properly, proponents say that it can help to protect the U.S. But there is concern among lawmakers — from both parties — that the statute has been abused.

“There are 204,000 reasons why Republicans will oppose FISA reauthorization in its current form," Ohio Rep. Jim Jordan said in a hearing on July 12. "Two hundred and four thousand times, the FBI improperly searched the 702 database.”

Lawmakers worry that Section 702 has resulted in data collection from Americans in contact with foreign surveillance targets, and that agencies like the FBI have then accessed that data. In several hearings, legislators have sought a balance between protecting national security and the privacy of U.S. citizens.

This appears to be one of those rare issues creating common ground in Washington. Democrats have long worried about Section 702's impact on civil liberties, though some — like Rep. Jerry Nadler, D-N.Y. — are willing to consider changes.

"This authority has become increasingly important to our national security, so i will entertain reauthorizing Section 702, provided that we meet this basic privacy challenge head on,” Nadler said in a hearing.

But some Republicans have targeted FISA out of anger over the FBI's investigation of possible ties between Russia and Donald Trump's first presidential campaign.

"The court says over 200,000 [searches] have occurred on your watch. Do you have any basis to disagree with that assessment?" Rep. Matt Gaetz, R-Fla., said, questioning FBI Director Chris Wray in a hearing on July 12. Wray began telling Gaetz that he didn't have the exact numbers in front of him, before being cut off. "Seems like a number you should know — how many times the FBI is breaking the law," Gaetz said.

Earlier this week, President Joe Biden's Intelligence Advisory Board issued a report detailing the need for both reauthorization and reform of the act.

"It has been instrumental in its first 15 years in preventing several potential high-impact events," including the 2009 attempted New York City subway bombing, the 2010 attempted vehicle bombing at a Portland Christmas tree lighting ceremony, cyber attacks against critical U.S. infrastructure and fentanyl smuggling efforts, as well as an event redacted within the report. Section 702 was also credited with intelligence-gathering efforts against foreign rivals, including China and Russia.

"Unfortunately, complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities," specifically regarding American citizens. However, the board said it found no willful misuses of Section 702 power for political purposes, and reported that the Department of Justice identified only three incidents of intentional misconduct among "millions" of FBI queries of Section 702 information.

Chief among its recommendations, the Intelligence Advisory Board suggested the Attorney General's Office be directed to remove the FBI’s authority to conduct queries for evidence of a non-national security-related crime in its Section 702 data. Among a dozen other recommendations, the board also suggested that a more rigorous preapproval standard be developed for 702 queries, and that the FBI establish Section 702 compliance officers at FBI headquarters and at each field office.

In a statement released in response to the report, the FBI responded coolly to the recommendations.

"We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules," the FBI said.

On the other hand, Congress could take action through inaction, said Jonathan Turley, a law professor at George Washington University.

“One of the possible responses from Congress could be simply to let this provision sunset. Just go back to the way it was in 2008,” when the section was introduced.

"There needs to be a strict, clear rule, the same way if the government wanted to wiretap your phone, search your house, or read your emails," said Jake Laperruque, the deputy director of the Center for Democracy and Technology's Security and Surveillance Project. "If you want to do that, you have to get a warrant first.”

Resolving the Section 702 debate is one of the must-do items on Congress’ plate when lawmakers return from their August recess. But as of now, there is no serious movement on any legislation relating to section 702, which is set to expire at the end of the year.