What you need to know about mass surveillance under Section 702—and why it needs to be reformed

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows United States (US) intelligence agencies to monitor foreign communications without a warrant, raising serious privacy concerns. Despite criticism and calls for reform from civil society, the US Congress recently renewed—and expanded—this mass surveillance authority.

In the United States (US), federal intelligence and law enforcement agencies conduct electronic surveillance under the authority granted to them by Section 702 of the Foreign Intelligence Surveillance Act (FISA). This statute allows the National Security Administration (NSA) to collect the contents of foreign electronic communications between people and entities identified as surveillance targets. In reality, this means collecting virtually all communications transmitted between US networks and those abroad. These communications are stored in a massive database that the NSA, Federal Bureau of Investigation (FBI), and other agencies can query to find communications that include specific names, addresses, topics, or other information related to an investigation. US intelligence agencies have come to rely heavily on this authority, but the statute is not permanent: it expires every so often unless US Congress reauthorizes it. 

Controversies and Legal Challenges

Section 702 is also contentious because it enables secret surveillance not only of individuals located outside the US, but that of US residents as well, without due process protections like obtaining a warrant. As a result, it threatens the rights of Wikipedia readers, editors, and internet users globally. Civil society organizations who work to protect privacy and civil liberties have been calling for reforms to Section 702 since 2013, when whistleblower Edward Snowden revealed the scope and scale of the NSA’s electronic surveillance operations. The Wikimedia Foundation sued the NSA in 2015, challenging its “Upstream” data surveillance and collection practices conducted under Section 702. Ultimately, the US Supreme Court declined to hear the case based on the government’s assertion of “state secrets privilege” in 2023, and hence never decided on the validity of the Foundation’s constitutional challenges.

In 2018, during a previous reauthorization period, Congress tried, but failed, to amend the statute in order to require greater transparency and accountability for the intelligence agencies who use the Section 702 database. Instead, Congress approved a “clean” reauthorization of Section 702—that is to say, with no changes—that was set to expire again at the end of 2023. In the months leading up to the 2023 expiration date, the Foundation joined a bipartisan group of civil society organizations to highlight to Congress the importance of reforming Section 702. In particular, we asked Congress to better protect the privacy of people who use the internet, to require greater transparency and accountability for the intelligence agencies, and to enable legal challenges like the one brought by the Foundation to have greater chances of success.

Recent Developments and Legislative Actions

Unfortunately, after a short-term extension of Section 702 (until 19 April, 2024) Congress once again reauthorized the statute without meaningful reforms. Instead, Congress actually broadened the purposes for which the Section 702 database can be queried: initially limited to counterrorism investigations, it now includes investigations for both counternarcotics and immigrant vetting. Congress also expanded the definition of “electronic communication service provider”—i.e., the entities that the NSA could require to assist with data collection—to include any organizations or persons with access to a communications facility.

This is a disappointing and unacceptable outcome. Not only did Congress fail to protect privacy and civil liberties, it gave the intelligence agencies even more power to secretly spy on people around the world. This time, however, Congress only reauthorized Section 702 for two years. This provides another opportunity to enact real reforms in 2026, but for that elected representatives will need to hear a loud and clear message from their constituents: Reform FISA, or let it lapse.

*          *          *

Interested in learning about other public policy issues that affect the Wikimedia projects, Wikimedians, and free and open knowledge? Subscribe to our quarterly newsletter email and stay up-to-date.