Section 702 of the Foreign Intelligence Surveillance Act (FISA) which authorizes surveillance of foreigners outside the United States, is up in the air for reauthorization. Previous years reauthorizations passed easily while this year, reports from the Intelligence Community and court opinions have shown that the FBI has been routinely using Section 702 as a legal justification for domestic spying and that agents are getting around restrictions on spying on domestic citizens by “incidentally” collecting their data. Section 702 was originally enacted by Congress in 2008 to ease restrictions on surveillance of suspected terrorists, whereas before, FISA required “an individualized order from the FISA Court” and probably cause that the target was a risk to national security. After Section 702, neither individualized order or probable cause are needed and intelligence agencies can spy on any foreigner they choose. It is much more difficult for the government to spy on Americans as agencies must first obtain a warrant or FISA order and ensure they comply with the Fourth amendment, however the intelligence data collected using Section 702 bycatches American’s data bypassing the aforementioned protections. This article discusses possible reforms Congress could enact to prevent Americans from being spied on without a warrant and to protect privacy and civil liberties. The article also discusses the game of “compliance whackamole” played between the FISA Court and intelligence agencies where agencies especially the FBI and NSA have been attempting to justify their noncompliance with surveillance limits while FISA attempts to block excuses and loopholes.
