ACLU Statement on Biden Administration Bypassing Congress and Extending Section 702 Surveillance

WASHINGTON — The Department of Justice announced today that the Foreign Intelligence Surveillance Court has granted the government a new one-year certification to conduct surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). This extension comes despite the fact that Congress is actively debating significant reforms to the Section 702 program and is poised to vote on the future of the authority next week. The ACLU urges Congress to oppose floor consideration of any legislation that would reauthorize Section 702 without providing votes on key amendments.

“To use a secret court to unilaterally extend a mass spying program that has been so flagrantly abused by the government betrays the public’s trust and circumvents the proper role of Congress in this process,” said Kia Hamadanchy, senior policy counsel at the ACLU. “This action means that even if Congress declined to reauthorize the statute, Section 702 surveillance could continue. The House must take the opportunity to vote next week on fundamental reforms that would put an end to the substantial harm that this program has allowed once and for all.”

In December 2023, Congress approved a short-term extension of Section 702 until April 19 as part of a larger defense policy bill. As the ACLU previously warned, this temporary extension was completely unnecessary because the government was conducting such surveillance under a one-year certification that would have expired on April 11, 2024.

Section 702 was designed to allow the government to warrantlessly surveil non-U.S. citizens abroad for foreign intelligence purposes. In recent years, however, it has morphed into a domestic surveillance tool, with FBI agents using the Section 702 databases to conduct millions of invasive searches for Americans’ communications — including those of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and even members of Congress.