U.S. Congress is under pressure to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA) before it expires at the end of 2023. Proponents say it could prevent cyber-attacks, including ransomware, hacking of software systems that control infrastructure, and even disinformation campaigns sponsored by hostile nation states and rogue organizations. But critics say the Act has been abused with alarming regularity by the Federal Bureau of Investigation as a “backdoor” tool for monitoring the activities of American citizens.  

Joshua Skule, former FBI Executive director for intelligence, and founder of Bow Wave LLC, a national security company, says limiting the powers of 702 would severely harm our ability to safeguard national security. “It’s an incredibly valuable and powerful information collection tool for the intelligence community. To require a warrant to conduct collection on people that are not U.S. persons, or inside the U.S., would incredibly inhibit the ability to prevent bad things from happening,” Skule says. “It would handicap the intelligence community.” 

At stake is the possibility of a “Cyber Pearl Harbor,” a term coined in 2012 by then-Secretary of Defense Leon Panetta to describe a catastrophic event caused by hacking government and corporate networks. Theoretical scenarios include destabilizing the electric grid, diverting airplanes in flight and setting off missiles – all of which have drastic implications for national supply chain operations, quite aside from harm to life and limb. 

Section 702 was created following the September 11 terrorist attacks, and allows intelligence agencies to gather large amounts of data such as emails, phone calls, texts and other communications, without a warrant. It is supposed to cover only non-U.S. citizens located abroad, but there are multiple confirmed cases of it being used to spy on Black Lives Matter protest organizers and Americans involved in the Jan. 6 Capitol riot, according to NBC News. 

Because Section 702 has prompted the capture of vast amounts of data, there’s a risk of  information not intended by the Act being caught up too, including that related to the activities and personal details of U.S. citizens and non-citizens located in the U.S. Strict protocols are necessary to ensure this powerful tool isn’t mis-used, Skule says. 

“When created, it didn’t quite envision the massive amount of technological advancements that are here today,” Skule says. He says adjustments were made to FISA 702 protocols in light of violations that should ensure they don’t happen again. Allowing Section 702 to lapse at year-end would present critical missed opportunities, Skule says. “You have to collect massive amounts of data from service providers and if you don’t collect it in real time, it’s gone.”

Critics disagree. A June 2023 letter to the Senate from 21 privacy, civil rights and civil liberties organizations said, “Although purportedly targeted at foreigners, Section 702 has become a rich source of warrantless government access to Americans’ phone calls, texts, and emails. Since Section 702 was last reauthorized, a series of disclosures has revealed the extent of this problem. In 2022 alone, the FBI conducted over 200,000 warrantless searches of Section 702 communications to find Americans’ information. This has turned Section 702 into something Congress never intended: a domestic spying tool.”

“It’s high time for Congress to step in and enact reforms that will safeguard Americans’ rights and business interests,” the letter’s authors said, adding details of problems with the law’s operation, along with suggested solutions. “Congress should not reauthorize Section 702 without these critical reforms.”