AILSA CHANG, HOST:
A controversial surveillance law expires tomorrow if Congress does not reauthorize it. And Congress has already rejected a short-term extension today. This law is Section 702 of the Foreign Intelligence Surveillance Act, or FISA. It basically allows U.S. intelligence agencies to intercept the electronic communications of foreign nationals outside the U.S. Now, an estimated 350,000 such people were targeted in 2025. But this law, it has critics on both sides of the aisle who point out that many of those foreigners communicate with Americans, creating a potential loophole to surveil U.S. citizens without a warrant. One such critic of Section 702 is Elizabeth Goitein of the Brennan Center for Justice. Welcome.
ELIZABETH GOITEIN: Thanks so much for having me.
CHANG: Well, thanks for being here. So let's start with the origin story of this law. What was Congress responding to back in 2008 when it first passed Section 702? Like, what was the goal?
GOITEIN: Congress was essentially trying to legalize an illegal, warrantless wiretapping program that was conducted by the Bush administration after 9/11. So Congress changed the law in 2008 to make it easier to spy on suspected terrorists - foreign terrorists - overseas. However, over time, it has become a rich source of warrantless access to Americans' communications, and that's why the law is so controversial today.
CHANG: OK, and we will get to your critique of the law, but the government says Section 702 is really important. It helps them gather the intel that makes up something like more than 60% of the president's daily intelligence briefing. So they say Section 702 is a vital tool for national security. Is there at least some merit to that claim?
GOITEIN: Sure. The government has actually provided many examples of cases in which actually targeting foreigners and reviewing their communications provided significant national security value. What the government hasn't done is show that there's significant national security value to the practice of warrantless backdoor searches finding Americans' phone calls and text messages and emails. In recent years, FBI agents have conducted searches for the communications of members of Congress, journalists and political commentators and tens of thousands of protesters from across the political spectrum.
CHANG: OK, so how would you best balance between national security and privacy? Like, if Section 702 does do important national security work, how do you give Americans protections for their data without potentially impeding that national security work? Like, how would you reform 702 exactly?
GOITEIN: It's quite simple. For more than a decade, there's been broad bipartisan support for reforming Section 702 by requiring the government to get a warrant before accessing Americans' communications that are swept up. This reform has actually passed the House twice, but in the current reauthorization cycle, Republican leadership isn't allowing any votes on this reform.
CHANG: OK, well, on this idea of a warrant each and every time, I could see an intelligence official saying, man, if I need to go get a warrant, if I need to go to court for every search of the FISA database, that would basically break the system, rendering this whole law useless. What is your response to that?
GOITEIN: The value of Section 702 overwhelmingly is in collecting and reviewing foreigners' communications. So that value continues. It is not affected. And in all of the cases where backdoor searches have actually provided value in the past - and that is just a handful of cases that the government's been able to identify - it appears that the government actually could have gotten a warrant or would have been able to invoke one of the exceptions to the warrant requirement. So this reform should have absolutely no impact on the value of the program.
CHANG: So as we mentioned, there is this reauthorization deadline on Friday - tomorrow. What happens if Congress does not act by the deadline? Like, does the surveillance under Section 702 just go dark?
GOITEIN: This surveillance does not go dark if the law expires, as some of the members who oppose reform are saying. The law is clear that these certifications remain in force even if the underlying statute expires. They're grandfathered. That means Section 702 surveillance is locked in until March 2027, regardless of what happens tomorrow.
CHANG: Elizabeth Goitein, senior director at the Brennan Center's Liberty and National Security Program, thank you very much.
GOITEIN: It was my pleasure. Transcript provided by NPR, Copyright NPR.
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