The fight over a law that enables widespread government surveillance

In the 1970s, after President Richard Nixon used the FBI and other agencies to surveil both foreign and US citizens he perceived as hostile to his administration, President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act. The law created the Foreign Intelligence Surveillance Court, which oversees the collection of intelligence about foreign citizens inside the US. In the 2000s, after the intelligence services fell short in tracing the perpetrators of 9/11, Congress added a new clause to the law: Section 702, which allowed the government to surveil foreign nationals outside the US by tapping their phones and collecting emails and text messages. To do so, intelligence agencies wouldn’t need a traditional warrant, but merely approval from the FISC—which meets in secret and only hears testimony from government agents.

If collecting texts, emails, and phone calls from foreign nationals was the limit of this capability, it would probably be a lot less controversial than it is. But under Section 702, intelligence agencies are also allowed to collect or search for phone calls, emails, and text messages that are sent or received by US citizens—provided they are not the original target of the search. This seems to many like an obvious breach of the Fourth Amendment’s protection from unreasonable search and seizure, but the government and intelligence agencies have argued that it is a necessary evil in order to track down terrorists and other criminals, and that even under the Fourth Amendment, officials can search and/or seize property without a warrant if the alleged crime is serious enough.

Over the past two weeks, the debate over Section 702 has reached a fever pitch—the law is set to expire at the end of the year and, so far, hasn’t been renewed.

More From CJR: