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The Foreign Intelligence Surveillance Act and the Warrantless Collection of Personal Data
Congressional Progressive Caucus Center
Last Updated December 5, 2023
Author: Mariam Malik, Senior Foreign Policy Associate
(mariam@progressivecaucuscenter.org)
Introduction
Spying has been a practice of the U.S. government since its inception. Gathering intelligence is justified because it helps uncover malicious actions that could endanger the safety of Americans and people around the world. However, in many instances intelligence is gathered unlawfully on individuals who have no harmful intentions and in violation of Americans’ Fourth Amendment right to privacy. This explainer breaks down the various illegal spying practices the U.S. conducts and the reforms needed to ensure constitutional integrity.
The Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) sets the rules for the collection of foreign intelligence by the U.S. government, including critical rules that protect or compromise Americans’ privacy. It first became law in 1978, but since then, it has been amended multiple times to enable greater domestic surveillance.
Section 702
Section 702 of FISA was enacted in 2008. It allows intelligence agencies, such as the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the National Counterterrorism Center (NCTC), to search through billions of warrantlessly acquired international communications. These agencies target non-U.S. persons (meaning non-U.S. citizens or residents) outside the U.S. and compel electronic communications companies, such as Google and Verizon, to turn over these individuals’ communications. Because we live in a globalized world, many Americans’ Fourth Amendment-protected conversations are swept up “incidentally.” This information includes emails, text messages, and internet data. In 2013, 89,138 individuals were targeted under Section 702 (Figure 1). In 2022, 246,073 people were targeted. Hundreds of millions of communications continue to be collected each year.
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