FISA Section 702

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is the statutory authority, codified at 50 U.S.C. § 1881a, under which the National Security Agency (NSA), Central Intelligence Agency (CIA), and Federal Bureau of Investigation may compel U.S. electronic communication service providers to assist in the warrantless collection of communications of foreign nationals reasonably believed to be located outside the United States. Enacted as Title VII of the FISA Amendments Act of 2008 and most recently reauthorized by the Reforming Intelligence and Securing America Act (RISAA) on April 20, 2024, Section 702 does not require the government to obtain an individual warrant before collection. Its application to Americans' communications through "backdoor searches" of the resulting databases has produced a decade of constitutional litigation, documented compliance failures, and at least one challenge in a domestic extremism prosecution arising from the 2023 Baltimore Power Grid Conspiracy.

Statutory Mechanics

Under Section 702, the Attorney General and the Director of National Intelligence jointly certify to the Foreign Intelligence Surveillance Court (FISC) that collection targets non-U.S. persons outside the United States for the purpose of acquiring foreign intelligence information. The certification is high-level and does not identify specific targets; the government issues directives directly to service providers, who must comply and may challenge the directive through the FISC. No individual warrant is required and no judge reviews specific targeting decisions before collection begins.

The statute prohibits intentionally targeting any person known to be located inside the United States, and prohibits reverse targeting: using a foreign-located person as a pretext to surveil an American. However, the communications of U.S. persons are collected "incidentally" when those persons communicate with a targeted foreign national. Once collected, the NSA, CIA, and FBI may query the stored communications databases using a U.S. person identifier (name, phone number, email address) without first obtaining a warrant. This practice is commonly called a "backdoor search" or "U.S. person query."¹

The government annually submits certifications to the FISC covering broad categories of collection (counterterrorism, counterproliferation, cybersecurity, foreign government activity). The FISC approves the certification and accompanying targeting and minimization procedures; it does not review individual collection decisions.

Incidental Collection and the Backdoor Search Problem

Because Section 702 collection sweeps in all communications between a foreign target and their U.S. contacts, the databases contain substantial volumes of purely domestic communications by Americans who were never suspected of any wrongdoing. The practice of querying those databases using U.S. person identifiers without a warrant has been the central civil liberties objection to the program since its inception.

The American Civil Liberties Union has described backdoor searches as a mechanism by which the government effectively searches Americans' private communications without a warrant, simply by routing the search through a database of material collected under a foreign intelligence authority. The ACLU's National Security Project, led by senior staff attorney Ashley Gorski, has been the primary institutional litigant pressing this Fourth Amendment challenge.²

The FISC disclosed in a declassified opinion (made public May 2023) that between approximately 2020 and early 2022, the FBI conducted more than 278,000 U.S. person queries that did not comply with the statutory querying standard. A subset of those non-compliant queries was related to "civil unrest and protests" (including batch queries of 141 persons arrested in connection with protests following the death of George Floyd in late May through mid-June 2020), more than 20,000 queries of persons affiliated with groups suspected of involvement in the January 6, 2021 breach of the U.S. Capitol, and queries conducted in connection with "domestic terrorism investigations involving racially motivated violent extremists."³

The FISC opinion found that one query in a domestic terrorism investigation alone "returned 33 Section 702-acquired products." The FISC characterized these compliance failures as serious and required remediation, while also noting that reforms implemented in 2021 and 2022 had brought the FBI's compliance rate above 98 percent by the time of the 2023 opinion.

Major Litigation: United States v. Hasbajrami

The leading judicial decision on the constitutionality of backdoor searches arose from United States v. Hasbajrami, a prosecution in the Eastern District of New York. Agron Hasbajrami, a U.S. person, pleaded guilty in 2012 to attempting to provide material support to terrorists and was sentenced to 180 months. While he was incarcerated, prosecutors disclosed that some evidence they would have introduced was acquired through FISA orders predicated on information collected under Section 702. The disclosure opened a decade of constitutional litigation.

On December 18, 2019, the U.S. Court of Appeals for the Second Circuit ruled that U.S. person queries of Section 702 databases constitute "separate Fourth Amendment events" from the initial collection, and must independently comport with the Fourth Amendment. The Second Circuit remanded to the district court to determine whether a warrant was required. On January 21, 2025, the district court issued a declassified ruling finding that warrantless backdoor searches of Section 702 data using U.S. person identifiers violated the Fourth Amendment and required a warrant. This was the first federal court ruling to impose a warrant requirement on U.S. person queries of Section 702 data.⁴

The ACLU represented Hasbajrami in the appeals. The ruling's limited applicability (the Second Circuit's jurisdiction, plus the case's specific procedural posture) meant the warrant requirement did not immediately extend to other circuits or to investigative practice generally. No circuit court has yet adopted the district court's holding as binding precedent, and the government's position on appeal remained pending as of mid-2026.

Use in Criminal Prosecution and the Notice Requirement

FISA requires the government to provide notice to a criminal defendant when evidence "obtained or derived from" FISA surveillance will be used at trial. The statute creates a process by which the defendant may then move to suppress that evidence and the district court may review the underlying surveillance in camera and ex parte. DOJ's record on providing this notice has been a persistent source of criticism: between 2008 and 2013, DOJ's National Security Division apparently adopted an interpretation of "derived from" that effectively eliminated notice in almost all cases. After the Supreme Court's 2013 decision in Clapper v. Amnesty International, which held that civil plaintiffs had no standing to challenge Section 702 collection, FISA notice in criminal cases became the primary vehicle for constitutional challenge.

DOJ has provided Section 702 notice in nine criminal prosecutions since the program's inception. The practice of "parallel construction," in which investigators recreate evidence through conventional means to avoid triggering the notice requirement, has been documented and criticized in oversight reports and press investigations.⁵

The Russell Challenge: United States v. Russell, D. Md.

The most significant domestic extremism challenge to Section 702 to emerge from a criminal prosecution occurred in United States v. Russell, 1:23-cr-00029 (D. Md.), the federal prosecution of Brandon Russell, founder of Atomwaffen Division, for conspiring to attack Baltimore Gas and Electric power grid substations.

Russell's defense attorneys, Kobie Flowers and Ian Goldstein, filed a motion on June 10, 2024, arguing that the government had used Section 702 in its investigation and had failed to provide FISA notice. The defense identified the specific public disclosure on which they grounded their inference: the ODNI released the document "FISA Section 702 Value Vignettes" on February 14, 2024 (intelligence.gov), which included a vignette describing an FBI investigation conducted in 2023 in which a "U.S. person query" showed that "a person located inside the U.S. was in regular contact with an unspecified foreign terrorist group, had acquired the means to conduct an attack and had already identified specific targets in the U.S." The vignette stated the FBI disrupted a "potentially imminent terrorist attack" against critical infrastructure less than a month after the person was first identified, using "iterative U.S. person queries" as the subject "shifted communications platforms."⁶

The defense argued that Russell's case was the only known open case matching all those disclosed particulars: a U.S. person, in regular contact with a foreign terrorist group, who had acquired attack means and identified specific infrastructure targets, and whose case was disrupted imminently. The American Civil Liberties Union's National Security Project joined the defense for the limited purpose of pursuing the Section 702 challenge, with Ashley Gorski stating publicly that the case presented "a rare and important opportunity to challenge the government's practice of conducting warrantless 'backdoor searches' of its Section 702 databases to locate the communications of Americans."⁷

The government agreed to disclose, in a classified ex parte briefing before Senior U.S. District Judge James K. Bredar, whether Section 702 had been used. That classified hearing took place on July 23, 2024. On August 9, 2024, Bredar issued a public order stating that he was "satisfied" the government would not use Section 702-derived evidence at trial and that "there is no basis on which to believe or suspect that the rights of the defendant have been violated in any way with respect to any government activities authorized by FISA." Bredar held that Russell was "not entitled to notice" of FISA surveillance under the applicable standard.

Bredar's public order was notably narrow: it addressed whether FISA evidence would be used at trial, and whether notice was required in that context, but declined to resolve publicly whether Section 702 surveillance had occurred at an investigative stage prior to the FBI informant's June 2022 contact with Russell. The order left open the question of whether a Section 702-derived tip had initiated the investigation, which could constitute a "taint" even if the evidence at trial was constructed entirely through other means.⁸

Russell was convicted at trial in February 2025. No Fourth Circuit appeal of Bredar's Section 702 ruling had been reported as of mid-2026; the issue was not preserved for appeal in a manner that produced public docket activity.

Section 702 and Domestic Extremism: Documented Pattern

The Russell challenge was the first publicly documented case in which Section 702 was raised as a legal issue in a prosecution for domestic violent extremism by a U.S. person with alleged connections to a foreign terrorist group. The theory of collection required bridging the statute's foreign-intelligence framework: Section 702 targets foreign nationals outside the United States, so for its contents to be relevant to a domestic U.S. person suspect, the connection must run through that person's communications with a targeted foreign national.

In Russell's case, the defense theory was that the AWD successor network's connections to international neo-Nazi networks (including Order of Nine Angles figures in the United Kingdom and affiliated groups in other countries) brought the international communications under Section 702 collection, and a backdoor search of that material surfaced Russell's communications. The government neither confirmed nor denied this theory in public proceedings.

The 2022 FISC opinion disclosing that the FBI conducted queries in connection with "domestic terrorism investigations involving racially motivated violent extremists" demonstrated that Section 702 databases had been queried in that investigative category, though whether any of those queries produced evidence used in prosecution, or produced Section 702 notice to a defendant, was not disclosed.³

The 2024 RISAA Reauthorization

Congress reauthorized Section 702 on April 20, 2024, through the Reforming Intelligence and Securing America Act, extending the authority to April 20, 2026. The central reform debate was whether to require a warrant for U.S. person queries. A House floor amendment to close the backdoor search loophole, which would have required a warrant or FISA Title I order to query Americans' communications in Section 702 databases, failed by a tied 212-212 vote on April 12, 2024. The bipartisan sponsors included representatives on both the political left and right who had raised concerns about the FBI's documented history of compliance failures.⁹

RISAA instead codified a series of procedural requirements: supervisory approval for certain queries, annual query training for FBI personnel, enhanced oversight for "sensitive queries," and minimum accountability mechanisms for noncompliant queries. The law also required enhanced oversight by the DOJ Office of Inspector General and Congress. No provision specifically addressed Section 702 collection or querying related to domestic extremism investigations, or required notice in cases where Section 702 had been used investigatively even when the derived evidence was not introduced at trial.

In August 2024, DOJ overseers discovered that the FBI had been using a querying tool that allowed personnel to access Section 702 data without adhering to RISAA's required procedures, a compliance failure identified after the statute's reforms were already in effect.¹⁰

DOJ OIG Report 26-002

The DOJ Office of Inspector General released report 26-002, "A Review of the Federal Bureau of Investigation's Querying Practices Under Section 702 of the Foreign Intelligence Surveillance Act," on October 2, 2025. The report found that the FBI had implemented all RISAA-required querying reforms and that the number of noncompliant queries had been substantially reduced. However, the OIG expressed concern that the total number of FBI queries had also declined sharply, with FBI and National Security Division personnel expressing worry that agents might be failing to run queries they should run, potentially missing threat information. The OIG identified four recommendations, all of which remained open as of the report's release.¹¹

PCLOB Oversight

The Privacy and Civil Liberties Oversight Board (PCLOB) released its updated oversight report on Section 702 on September 28, 2023, concluding that the program "provides unique and irreplaceable intelligence" for counterterrorism, counterproliferation, and cybersecurity missions, while also documenting significant compliance failures and pressing for additional reforms. The PCLOB conducted a separate review of the FBI's querying practices and has a pending oversight project examining the government's domestic terrorism countermeasures and their civil liberties implications across investigative programs, though that review had not produced a public report specifically addressing Section 702 and domestic violent extremism as of mid-2026.¹²