FISA Section 702: Why Congress Must Mandate a Warrant or Let the Authority Expire

• EFF demands a mandatory warrant requirement for FBI access to American communications under FISA Section 702, asserting that the law should expire if this reform is not enacted.
• Current practices allow the FBI to bypass the Fourth Amendment by accessing mass surveillance databases collected by the NSA without individual suspicion or judicial oversight.
• The looming appointment of Bill Pulte as Director of National Intelligence has intensified concerns due to his history of allegedly weaponizing private government data against political opponents.

The Case for Warrant Reform

• Section 702 targets non-U.S. persons abroad but frequently captures communications involving U.S. citizens.
• The FBI currently utilizes a "finders keepers" policy, querying and reading American communications stored in NSA databases without a warrant, despite such a warrant being required if the FBI obtained the data independently.
• Privacy advocates argue that the program lacks the individualized suspicion necessary for a constitutional surveillance regime.

Political Impasse and Leadership Concerns

• A bipartisan coalition of surveillance hawks currently resists any reforms to the authority, preferring to let it expire rather than compromise with privacy advocates.
• Bill Pulte’s nomination has become a central point of contention; he has previously faced accusations of using his role at the FHFA to target political adversaries like Letitia James, Adam Schiff, and Lisa Cook.
• Lawmakers are urged to use the leverage of his confirmation to force substantive reforms to Section 702, rather than relying on the integrity of the individuals overseeing the program.

Implications of Expiration

• If Section 702 expires, the NSA could technically continue current operations until March 2027 based on existing judicial certifications.
• A permanent expiration would likely lead the government to rely on Executive Order 12333, a broader and less transparent authority governing foreign intelligence collection.
• Advocates maintain that allowing expiration is a necessary step to force transparency and challenge the legal justifications for mass surveillance, regardless of which executive authority the government attempts to pivot toward.