After 9/11, US president George W. Bush authorized the National Security Agency (NSA) to eavesdrop on Americans without a court-approved warrant as part of a hunt for evidence of terrorist activities. A federal judge ruled the collection unconstitutional in 2006, as part of a lawsuit brought by the American Civil Liberties Union. (The Court of Appeals later overturned the ruling without challenging the merits of the case.)
Instead of ending surveillance, Congress codified the program into Section 702 of the Foreign Intelligence Surveillance Act (FISA), granting itself some authority to enforce procedures designed ostensibly intended to limit the program's impact on Americans' civil liberties.
Section 702 explicitly prohibits the government from targeting Americans. Instead, surveillance must focus on foreigners living abroad. However, Americans' contact information is regularly collected by this program.
While it denies that it intentionally eavesdropped on its citizens, once it did so, the US government's position is that it now has the right to access “lawfully collected” communications. ” without needing a judge's approval. In 2021 alone, the FBI conducted searches of intercepted communications under 702 more than 3.4 million times.
Last year, after admitting that hundreds of thousands of such searches were illegal, the FBI said it had taken steps to limit the number of queries made by its employees, reporting in 2022 there were only 204,000 searches.
The government claims that it is impossible to count the number of Americans whose calls, emails and texts were monitored under 702, and argues that any attempt to get an exact number would only compromise in addition to the privacy rights of the Americans they monitor.
Congress is currently divided into two camps: Those who believe that the FBI requires a warrant before reading or listening to Americans' communications collected under section 702. And those who believe that a warrant is a requirement too burdensome to impose on investigations of national security threats.
