Analytical Essay: Section 702 and the Tension Between Privacy and Security
By some definitions of intelligence, the purpose is to know the unknown and fit it into the greater context of the world at large. But in the United States, persons inside the borders of our country are protected from unlawful searches and seizures by the government under the Fourth Amendment of the Constitution. This tension lies at the heart of the United States Intelligence Community (USIC) and their rival obligations of national security and civil liberties (Lowenthal 2025). One of the most well-known controversies is the Foreign Intelligence Surveillance Act’s (FISA) Section 702, granting the U.S. government the power to collect data on non-U.S. persons reasonably believed to be outside the United States, but it comes with provisions allowing for incidental capture of U.S. persons data that critics argue is a violation of Americans’ right to privacy.
Section 702 specifically grants the USIC the ability to capture communications of non-U.S. persons believed to be outside the boundaries of the United States itself. The provision was drafted in 2008, years after the September 11 terrorist attacks, due to difficulty collecting communications data from foreign nationals when said targets used U.S.-based telecommunications infrastructure (Harding 2026). While the provision is mainly focused on the collection of non-U.S. persons, there are provisions for the collection of U.S. persons, incidentally. At the heart of this data is signals intelligence (SIGINT) for both domestic and internationally-focused IC agencies. Because Section 702 information is lawfully acquired under the statute, agencies may subsequently query that information without a warrant, but within organizational guardrails protecting U.S. persons.
That is not to say that agencies have free rein to go searching for whatever they’d like. The FBI has a rigorous escalation policy involving supervisors and/or legal counsel before they have permission to search the information collected under Section 702 (Harding 2026). Because the bureau’s jurisdiction is domestic, it is generally assumed they are searching the database for persons that could reasonably be believed to be inside the United States, making their information incidentally collected. While other agencies have their own procedures, generally the focus of their investigations are foreign nationals outside of the United States.
The USIC cites Section 702 as a linchpin of their success in monitoring and disrupting cybercriminals, illicit drug trade, and international terrorist organizations. Per a report cited by Harding (2026), 60% of the information contained in the Presidential Daily Briefing was sourced from Section 702. The NSA, specifically, cites 100% of the president’s intelligence priorities were sourced from Section 702 data (Harding 2026). The support for Section 702 is not universal, however.
Carter Page became a central figure in Republican efforts to restrict Section 702. Although Page’s communications were not collected under Section 702, the overarching FISA courts approved investigations into Page based on his communications with Russian officials. Both the DOJ Inspector General and the Trump administration’s response investigation found significant oversight gaps and “significant inaccuracies, omissions, and failures in the FISA applications and Woods Procedures” but ultimately that the collection of the data was legally justifiable given his foreign contacts (House Permanent Select Committee on Intelligence 2018; Office of the Inspector General 2019).
It is not just Trump administration officials that have voiced privacy concerns with FISA Section 702’s wide net of information collection. Privacy advocates from the political spectrum have voiced concerns about allowing a warrantless (but not unlimited or rule-less) search of the data collected as a “backdoor search loophole” (Chauvin 2025). Harding (2026) cites Glenn Gerstell’s attempt to quantify the number of U.S. persons’ data that might be searched on a yearly basis. At the high, the number might be as much as 2,000 distinct U.S. persons. However, the absolute number of potential U.S.-person queries is less informative than examining the purposes for which those queries occur and the safeguards governing them.
Judicial review of FISA collection procedures largely targets the methodology of collection rather than the specific queries, strategy over tactics (Miller 2024). The FBI, as the preeminent domestic law enforcement and intelligence agency, has strict procedures for querying the database, as previously mentioned. Oversight for this data is substantial; however much of it comes in the form of process, audits, and compliance rather than query-specific approvals. Congress has inherently different motivations. Their goals may not be strictly national security – although it would be naive to suggest it’s not part of their calculus – but rather domestic policymaking and political ends (Lowenthal 2025). Thus, someone like Carter Page can become a cause célèbre around certain sects of the political sphere who aim to do away with Section 702, wholesale. One has to believe that there is a middle ground between warrantless searches for domestic persons and gutting Section 702 entirely.
Explicitly, it’s not the collection of the data that is up for oversight; rather it’s the querying of said data. Harding (2026) proposes that the FBI (or other domestic agencies) might only be allowed to search the database to notify victims. The goal is not to dismantle the entirety of Section 702, but rather put additional, privacy-focused safeguards around this data. Forcing domestic IC agencies to have a warrant to search the database for any reason will add overhead, but it preserves the core of what Section 702 was meant to preserve: Aggregation of foreign nationals outside the borders of the United States.