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Fate of FISA Section 702 Lies in Congress

This past week, it was disclosed that the National Security Agency is currently conducting surveillance on 100,000 foreign nationals. The surveillance is authorized under the Foreign Intelligence Surveillance Act (FISA), passed in 1978 and then strengthened by the FISA Amendments Act of 2008. The disclosure of this surveillance has renewed the argument of one of FISA’s most controversial parts: Section 702, which authorizes the NSA and other U.S. intelligence agencies to monitor emails and calls of foreign nationals outside of the United States. Section 702, which is controversial among both Democrats and Republicans in Congress, is set to expire in December unless Congress votes to renew it.

On the surface, the purpose of 702 is to monitor foreign nationals that the U.S. suspects to have terrorist ties. Since is authorization, 702 surveillance has helped identity cyber threats from foreign governments, stop cyber attacks from foreign enemies, and disrupt ISIS terror threats in the Middle East. So one would ask, what is the big deal with 702 surveillance? It can from time to time, incidentally collect communications and information of U.S. citizens. While 702 was not intended to collect intelligence on American citizens, the incidental collection that takes place has sparked a debate about privacy, individual liberties, and some even argue that 702 violates the Fourth Amendment to the U.S. Constitution, which forbids illegal searches and seizures of a person’s property without a warrant issued by a court.

U.S. Intelligence officials argue that the data and intelligence collected through 702 surveillance is irreplaceable, and that the U.S. would lack without it. Recently, Director of National Intelligence Dan Coats described renewing 702 as “one of our absolute top priorities this year.” President Trump, despite consistently criticizing the Intelligence Community’s assessment of the 2016 election hacking, supports the re-authorization of 702 without any changes. Others, like Democratic Sen. Ron Wyden, have argued that 702 is too broad and too powerful, and that it collects information on Americans without a warrant, which would violate the Constitution.

702 will likely get renewed before its December deadline, because of how valuable of an asset it is to the U.S. Intelligence Community. But this battle won’t end in December whether it is renewed or not, the debate over the merits and legality of 702 will persist well past 2017, and as long as the U.S. collects foreign intelligence, it will continue to be an issue in American politics.

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