Judge renews procedures for 702 surveillance program that could soon lapse
But the judge on the Foreign Intelligence Surveillance Court who issued the March 17 ruling raised concerns about filtering tools the FBI, NSA and other agencies use to sift through raw data collected under the program — known as Section 702 of the Foreign Intelligence Surveillance Act — one of the people said.
Both people spoke on the condition of anonymity to discuss details about the sensitive nature of the recertification, some components of which are classified.
Section 702 allows spy agencies to compel internet and telecom providers to turn over contents of phone calls, emails and text messages of foreigners located abroad without a warrant, but, in doing so, agencies can also incidentally collect Americans’ data if they are communicating with a foreign target. The program is set to expire April 20, unless lawmakers vote to reauthorize it.
Collected 702 communications are stored in classified databases, where analysts query them for foreign intelligence. Search terms — known as “selectors” — can include names, phone numbers or email addresses of targeted individuals. Analysts may use tools to search stored U.S. person data when they believe doing so is reasonably likely to return useful information for national security investigations.
The New York Times first reported details of the recertification and said that, per the judge’s ruling, agencies must reengineer filter tools because the court found that narrowing results to an American’s collected communications effectively turns a foreign-target search into a U.S.-person query subject to stricter limits. The Trump administration is weighing whether to appeal the order, the report adds.
Nextgov/FCW has not independently confirmed those details of the ruling, but the judge’s concerns about the querying process suggest spy agencies may not be consistently applying safeguards meant to protect Americans’ data after being collected.
The White House did not return a request for comment by the time of publication.
The administration is seeking a clean 18-month extension of the spying power in Congress, which, if approved, would extend it until October 2027.
Privacy advocates argue that a warrant requirement should be mandated for searches of U.S. person data collected under 702. The intelligence community has historically argued against that measure, saying it would slow down timely investigations and prevent analysts from acting on hunches as they track national security threats.
Several lawmakers from both sides of the political aisle, including Trump supporters, have backed warrant reforms for the law.
The recertification and ruling from the judge could give privacy and civil liberties groups more runway to challenge how spy agencies handle Americans’ data under the program.
“The FISA court’s recertification of Section 702 is another demonstration of the same pattern we have seen time and time again. The intelligence agencies find workarounds, compliance breaks down, and the public only finds out after the fact. A clean reauthorization represents more of the same. Real reform requires warrants for Americans’ communications,” said Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union.
Under Section 702, the court annually reviews and approves the procedures governing how agencies collect, handle and search data. The recertification allows the program to continue under court-approved rules, but it does not extend the underlying law and can surface compliance gaps that require agencies to change certain procedures.
A declassified version of last year’s certifications shows the FBI used an “Advanced Filter Function” that allowed users to “select a specific FBI casefile number or facility, using a drop-down menu or search bar” to review communications of individuals in contact with foreign targets.
But the FBI later “deactivated” the tool after the Justice Department found that selecting those individuals “resulted in queries of raw information,” rather than merely sorting the results of prior searches, and that the government lacked sufficient records to determine whether those queries complied with applicable requirements. Those queries could have included communications involving U.S. persons, which would trigger stricter rules on how the data is accessed and used.
The split between the court’s recertification process and Congress’s role in renewing Section 702 can create legal gray areas. The intelligence court approves the rules governing the program, but only lawmakers can extend the authority itself, raising questions about compliance if the statute lapses.
In 2024, two service providers privately warned they would stop complying if the law was not renewed, despite the program having been recertified that year.
Section 702, enacted in 2008, codified parts of the once-secret Stellarwind surveillance program created under the Bush administration after the Sept. 11, 2001, attacks. In 2013, former NSA contractor Edward Snowden disclosed documents detailing how the authority was used, fueling a global debate over privacy and mass surveillance.
The program is frequently used to track myriad national security threats, including hackers, terrorist groups and foreign intelligence operatives. This week, around four dozen former national security officials urged Congress to renew the spying power before it expires.
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