Reauthorization of Title VII of the Foreign Intelligence Surveillance Act

March 17, 2023 R47477

Reauthorization of Title VII of the Foreign
March 17, 2023
Intelligence Surveillance Act
Edward C. Liu
Title VII of the Foreign Intelligence Surveillance Act (FISA) generally addresses electronic
Legislative Attorney
surveillance and other methods of acquiring foreign intelligence information that are directed at

targets outside the United States. As a general matter, the principal effect of Title VII on FISA’s
legal framework is to apply FISA’s protections to overseas targets dependent primarily on the

target’s nationality, and not the location where the acquisition occurs. Title VII includes separate
provisions that authorize surveillance of both U.S. persons (Sections 703 and 704) and non-U.S. persons (Section 702), but it
is the provisions related to non-U.S. persons that have garnered the most attention over the life of Title VII and during past
reauthorization debates.
With respect to foreigners, Section 702 offers an alternative procedure for acquiring foreign intelligence information
notwithstanding FISA’s traditional requirements. Section 702 may only be used to target non-U.S. persons who are
reasonably believed to be outside the United States in order to obtain foreign intelligence information. Unlike traditional
FISA orders authorizing electronic surveillance, Section 702 does not require the Foreign Intelligence Surveillance Court
(FISC) to make probable-cause determinations with respect to individual targets of surveillance or the facilities at which
surveillance will be directed. Instead, Section 702 directs the Attorney General, in consultation with the Director of National
Intelligence (DNI), to develop targeting procedures that intelligence officials will use to identify targets for surveillance
under Section 702. As one federal court stated, “judicial review of Section 702 functions as a form of programmatic pre-
clearance.” The U.S. Courts of Appeals for the Second, Ninth, and Tenth Circuits have agreed that where “the target of
Section 702 surveillance is a foreign national located abroad having no substantial connections with the United States, that
target is not entitled to Fourth Amendment protections,” even if the acquisition occurs in the United States.
For calendar year 2021, the Office of the DNI estimated that there were 232,432 non-U.S. persons targeted under Section
702.
Declassified FISC opinions from 2011 found that a type of electronic surveillance known as “about” collection (e.g., where
the target email address is referenced in the body of an email to which the target is not a party) resulted in the estimated
collection of “tens of thousands of wholly domestic communications each year” by the National Security Agency (NSA) due
to technical limitations in how the government implemented such collection. The NSA announced in 2017 that it was no
longer conducting “about” collection to prioritize “the greatest value to national security while reducing the likelihood that
NSA will acquire communications of” persons who are not in contact with a foreign intelligence target. During the 2018
reauthorization of Title VII, Congress amended Section 702 to prohibit the resumption of “about” collection unless the
Attorney General and DNI provide written notice of the intent to resume such collection to the House and Senate Judiciary
and Intelligence Committees.
In 2018, Congress also amended Section 702 to require the Attorney General, in consultation with the DNI, to adopt querying
procedures to govern how information collected under this Section is searched after it has been collected. Additionally, if the
Federal Bureau of Investigation (FBI) seeks to query the contents of information acquired under Section 702 using a U.S.
person identifier for a criminal investigation unrelated to national security, it must first obtain an order from the FISC
supported by probable cause authorizing such query.
For calendar year 2021, the Office of the DNI reported that the NSA, Central Intelligence Agency (CIA), and National
Counterterrorism Center (NCTC) used 8,790 U.S. person query terms to search Section 702 contents. CIA and NSA used
3,958 U.S. person query terms to search Section 702 metadata for the same period. FBI reports these statistics differently,
counting the total number of queries using U.S. person terms, as opposed to CIA, NSA, and NCTC’s practice of counting the
number of U.S. person terms used. Between December 2020 and November 2021, FBI estimates it has conducted “fewer than
3,394,053” queries using a U.S. person term.
Title VII of FISA is scheduled to sunset on December 31, 2023.

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Reauthorization of Title VII of the Foreign Intelligence Surveillance Act

he Foreign Intelligence Surveillance Act (FISA) of 1978 provides a statutory
mechanism by which the federal government may obtain a court order authorizing the
use of electronic surveillance to collect foreign intelligence information.1 In 2008,
T Congress enacted the FISA Amendments Act, which added a new Title VII to FISA to
provide additional procedures for directing electronic surveillance or other types of
intelligence collection at persons while they are located outside the United States.2 Title VII of
FISA is scheduled to sunset on December 31, 2023.3
Title VII of FISA generally addresses electronic surveillance and other methods of acquiring
foreign intelligence information that target persons while they are outside the United States. With
respect to overseas targets, Title VII includes provisions that authorize surveillance of U.S.
persons while they are abroad (Sections 703 and 704).4 The provisions of Title VII relating to
non-U.S. persons (Section 702),5 however, have garnered the most attention over the life of Title
VII and in past reauthorization debates.
The main focus on Section 702 is likely due to its relatively more flexible requirements,
compared to other federal statutory frameworks that authorize wiretapping. Since the late-1960s,
a cornerstone of the American legal framework for government wiretapping has been the
requirement that surveillance be authorized by a warrant or court order issued by a neutral and
detached magistrate and accompanied by factual determinations about the particular target of
surveillance that are supported by probable cause.6 In contrast, surveillance under Section 702
does not require a court to make particular findings for each individual target of surveillance,
although courts still play a role in Section 702 through the review and approval of procedures
used by the government to identify individual surveillance targets and the access to and use of
collected information.7
This CRS Report provides a brief summary of the original electronic surveillance authorities
under Title I of FISA as they existed before 2008. It then explains the new procedures provided
under Title VII and how they differ from electronic surveillance orders authorized under Title I of
FISA (hereinafter referred to as “traditional FISA”).
Traditional FISA
The Foreign Intelligence Surveillance Courts
From FISA’s inception, a central feature of its framework is the use of specialized courts to hear
applications for the use of FISA’s investigative authorities and to issue orders authorizing the
same. FISA establishes both a Foreign Intelligence Surveillance Court (FISC), which generally

1 P.L. 95-511 (codified at 50 U.S.C. §§ 1801–1885c). In addition to court orders authorizing electronic surveillance,
FISA also includes provisions to obtain court orders authorizing physical searches, 50 U.S.C. §§ 1821–1829;
authorizing the installation of pen register or trap and trace devices (PR/TT), id. §§ 1841–1846; and compelling the
production of certain categories of business records, id. §§ 1861–1864. For a high level summary of these authorities,
see CRS In Focus IF11451, Foreign Intelligence Surveillance Act (FISA): An Overview, by Edward C. Liu.
2 P.L. 110-261, § 101 (codified at 50 U.S.C. §§ 1881–1881g).
3 Id. § 403(b) (as amended by P.L. 115-118, § 201(a)) (codified at 50 U.S.C. § 1881 note).
4 50 U.S.C. §§ 1881b, 1881c.
5 Id. § 1881a.
6 See CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by Charles Doyle.
7 50 U.S.C. § 1881a(j).
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hears the government’s ex parte applications to use FISA’s investigative authorities, and a
Foreign Intelligence Surveillance Court of Review (FISCR), which hears government appeals
from the FISC.8
In 2015, Congress amended FISA to expressly authorize the presiding judges of the FISC and
FISCR to jointly designate five individuals who are eligible to serve as an amicus curiae.9 Each
court may appoint an amicus curiae to assist with the review of any application or review that
presents a novel or significant interpretation of the law.10 In 2018, Congress included express
authority for the FISC or FISCR to compensate appointed amici at a rate the court considers
appropriate.11 During the debate preceding the 2018 reauthorization, Congress also considered
legislation to expand the scope of the amici’s role before the FISC, including authorizing amici to
make an application to the FISC or FISCR to refer a decision to the FISCR or the Supreme Court,
respectively.12
Key FISA Definitions
FISA uses particular definitions of the terms “electronic surveillance,” “U.S. person,” and “agent
of a foreign power.” This section summarizes these key terms, which are important to
understanding how Title VII’s provisions differ from traditional FISA.
“Electronic Surveillance”
FISA’s definition of “electronic surveillance” includes four categories.13 Each category of
electronic surveillance varies based on the target of the acquisition, the type of communication
being acquired, and the location where the communication is being acquired. The four categories
involve:
1. Acquisitions of wire or radio communications by targeting a specific U.S. person
who is presently in the United States.
2. Acquisition of the contents of a wire communication to or from a person in the
United States, if such acquisition occurs in the United States.
3. Acquisition of the contents of any radio communication where both the sender
and all intended recipients are located within the United States.
4. Installation or use of an electronic, mechanical, or other surveillance device in
the United States to acquire information, other than from a wire or radio
communication.14

8 Id. § 1803(a), (b). The FISC is comprised of eleven U.S. district court judges, designated by the Chief Justice of the
U.S. Supreme Court, representing at least seven judicial circuits, three of whom must live within twenty miles of the
District of Columbia. Id. § 1803(a)(1). The FISCR is comprised of three judges, also designated by the Chief Justice,
and decisions of the FISCR may be reviewed by the Supreme Court. Id. § 1803(b). All members of the FISC and
FISCR serve seven-year terms that expire on a rotating basis. Id. § 1803(d).
9 Id. § 1803(i).
10 Id. § 1803(i)(2).
11 Id. § 1803(i)(11).
12 See, e.g., USA RIGHTS Act of 2017, S. 1997, 115th Cong. § 8 (2017).
13 50 U.S.C. § 1801(f).
14 Id. § 1801(f)(1)–(4).
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All four categories of electronic surveillance generally require some connection to the United
States, requiring either the target or the acquisition to be in the United States. When the target is
overseas, neither the first nor third category of electronic surveillance applies as they either
require the target or all parties to the conversation to be within the United States. Conversely, the
second and fourth categories of electronic surveillance may apply to an overseas target, but only
if the acquisition occurs within the United States. As a result, acquisitions that neither take place
within the United States nor target a person who is in the United States generally fall outside the
scope of FISA’s definition of electronic surveillance.
“U.S. Person”
FISA defines “U.S. person” to include both individuals and organizational entities.15 With respect
to individuals, a U.S. person includes U.S. citizens or aliens lawfully admitted for permanent
residence.16 As for organizations, FISA defines U.S. person to include corporations incorporated
in the United States and unincorporated associations that have a substantial number of individual
members who are U.S. citizens or lawfully admitted permanent residents.17
“Agent of a Foreign Power”
FISA’s definition of “agent of a foreign power” has different elements depending on whether the
agent is a U.S. person or a non-U.S. person. A non-U.S. person may be an agent of a foreign
power if:
 The person acts in the United States as an officer or employee of a foreign power,
or as a member of a group engaged in international terrorism, irrespective of
whether the person is inside the United States;
 The person acts for or on behalf of a foreign power that engages in clandestine
intelligence activities in the United States contrary to U.S. interests, when the
circumstances show that such person may engage in such activities, or when such
person knowingly aids or abets any person in the conduct of such activities or
knowingly conspires with any person to engage in such activities; or
 The person engages in the international proliferation of weapons of mass
destruction or activities in preparation therefor.
In contrast, any person (including a U.S. person) may be an agent of a foreign power if:
 The person knowingly engages in unlawful clandestine intelligence-gathering
activities for or on behalf of a foreign power;
 The person, under the direction of an intelligence service or network of a foreign
power, knowingly engages in any other clandestine intelligence activities for or
on behalf of such foreign power, which activities involve or are about to involve
a violation of the criminal statutes of the United States;
 The person knowingly engages in sabotage or international terrorism, or
activities in preparation therefor, for or on behalf of a foreign power;

15 Id. § 1801(i).
16 Id.
17 Id. The term “U.S. person” also excludes certain corporations or associations that fall under FISA’s definition of a
foreign power.
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 The person knowingly aids or abets any person in, or conspires with any person
to engage in, the conduct of activities described in the above; or
 The person knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power or, while in the United States,
knowingly assumes a false or fraudulent identity for or on behalf of a foreign
power.
FISA Applications for Electronic Surveillance
Under Title I of FISA, the government may apply to the FISC for an order authorizing the
government to conduct electronic surveillance against a particular target.18 The government must
include information in its application about, among other things, the identity of the target, the
applicant’s reasons for believing that the target is a foreign power or an agent of a foreign power,
and that the facilities at which surveillance will be directed are being used, or are about to be
used, by a foreign power or agent of a foreign power.19
Title I of FISA also requires the Attorney General to adopt procedures to minimize the acquisition
and retention and prohibit the dissemination of nonpublic information of nonconsenting U.S.
persons, consistent with the need to obtain, produce, and disseminate foreign intelligence
information.20 In particular, the minimization procedures must prohibit the dissemination of
nonpublic information that would identify a U.S. person, unless such person’s identity is
necessary to understand foreign intelligence information or assess its importance.21 The
minimization procedures may allow the retention of information that is evidence of a crime and
the dissemination of such information for law enforcement purposes.22
If the FISC finds that probable cause exists to support the application’s determinations, it shall
issue an order authorizing electronic surveillance for up to 90 days if the target is a U.S. person,
up to 120 days if the target is a non-U.S. person, or up to one year if the target is a foreign
government, a faction of a foreign nation, or an entity openly directed or controlled by a foreign
government.23 At the end of the order’s duration, the FISC may grant extensions, which may be
for up to one year if the target is not a U.S. person.24
FISA’s Place in American Federal Wiretapping Law
FISA is one of several federal laws that govern the use of electronic surveillance for legitimate
investigative purposes. The principal others are the U.S. Constitution’s Fourth Amendment,25 the

18 Id. § 1804.
19 Id. § 1804(a)(2), (3). FISA’s definition of a “foreign power” generally includes foreign governments as well as
factions of a foreign nation or nations; entities that are openly controlled by a foreign government; groups engaged in
international terrorism, foreign-based political organizations; and entities engaged in the international proliferation of
weapons of mass destruction, provided that such faction, entity, or group is not substantially composed of U.S. persons.
Id. § 1801(a).
20 Id. §§ 1801(h), 1804(a)(4).
21 Id. § 1801(h)(2).
22 Id. § 1801(h)(3).
23 Id. § 1805(d)(1).
24 Id. § 1805(d)(2).
25 U.S. CONST. amend. IV.
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Electronic Communications Privacy Act (ECPA),26 and Executive Orders 1233327 and 14086.28
Each of these, and how they may overlap or interact with FISA, are discussed briefly below
before examining Title VII’s provisions in detail.
Fourth Amendment
The Constitution’s Fourth Amendment provides a right “of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”29 In domestic
criminal law investigations, “reasonableness” generally requires law enforcement officers to
obtain a court-issued warrant before conducting a search,30 but courts have recognized exceptions
to the warrant requirement.31 When the warrant requirement does not apply, government activity
is generally subject to a “reasonableness” test under the Fourth Amendment.32
Government action constitutes a search when it intrudes upon a person’s “reasonable expectation
of privacy,” which requires both that an individual “seeks to preserve something as private” and
this subjective expectation of privacy is one that “society is prepared to recognize as
reasonable.”33 As a general rule, the Fourth Amendment requires the government to show
“probable cause” and obtain a warrant issued by a “neutral and detached magistrate” before
conducting a search.34 The U.S. Supreme Court first held that the recording or interception of
electronic communications by law enforcement constitutes a search for purposes of the Fourth
Amendment in its 1967 decision in Katz v. United States.35 Since then, lower courts have
similarly applied Fourth Amendment protections to the contents of email communications.36 In
2018, the Supreme Court held that law enforcement’s collection of seven days of a customer’s
historical location information from his cellular telephone provider constituted a Fourth
Amendment search.37
The Supreme Court has not expressly addressed whether the warrant requirement categorically
applies to the government’s collection of foreign intelligence. In a 1972 case, the Supreme Court
held that warrantless electronic surveillance for purposes of domestic intelligence gathering
violated the Fourth Amendment, despite the government’s assertion of a national security
rationale.38 The Court indicated that its conclusion might have been different, however, if the case

26 18 U.S.C. §§ 2510–2522.
27 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981), as amended by Exec. Order No. 13,284, 68 Fed. Reg.
4,075 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004); Exec. Order No. 13,470, 73 Fed.
Reg. 45,325 (July 30, 2008).
28 Exec. Order No. 14,086, 87 Fed. Reg. 62,283 (Oct. 14, 2022).
29 U.S. CONST. amend. IV.
30 Lange v. California, 141 S. Ct. 2011, 2017 (2021).
31 Id.
32 Id. (citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (stating “the ultimate touchstone of the Fourth
Amendment is ‘reasonableness’”)).
33 Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (internal quotations omitted).
34 Id.; see also Riley v. California, 573 U.S. 373, 382 (2014) (“[A] warrant ensures that the inferences to support a
search are drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” (internal quotations omitted)).
35 Katz v. United States, 389 U.S. 347, 353 (1967), overruling Olmstead v. United States, 277 U.S. 438 (1928).
36 E.g., United States v. Warshak, 631 F.3d 266 (10th Cir. 2010).
37 Carpenter, 138 S. Ct. at 2217.
38 United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 321–24 (1972).
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had involved the electronic surveillance of foreign powers or their agents, within or outside the
United States.39
The Supreme Court has also held that the Fourth Amendment (and, in particular, its warrant
requirement) does not apply extraterritorially.40 In United States v. Verdugo-Urquidez, the Court
held that the Fourth Amendment does not apply to extraterritorial actions by law enforcement, at
least where the defendant is a citizen and resident of a foreign country with “no voluntary
attachment to the United States” and the place searched was located abroad.41 Lower courts have
extended Verdugo-Urquidez’s holding to conclude that the Fourth Amendment’s warrant
requirement does not apply to the surveillance of United States citizens abroad.42
The Electronic Communications Privacy Act (ECPA)
Following Katz v. United States, Congress enacted a federal statute, now known as the Electronic
Communications Privacy Act (ECPA),43 which generally prohibits government wiretapping
except where the government has obtained a court order supported by probable cause and
authorizing such surveillance against the target.44 Court orders under ECPA are available only
when the government is investigating the commission of certain predicate offenses specifically
listed in the statute.45 In some cases, the use of surveillance activities for foreign intelligence
purposes might fall within the scope of the activities prohibited by ECPA. There are two
exceptions to ECPA’s general prohibitions that address this situation.
First, if the activity falls within FISA’s definition of electronic surveillance, then it is not
prohibited by ECPA if the government complies with FISA’s procedures.46 For example, the
government could lawfully intercept a domestic phone call, which falls under FISA’s definition
of electronic surveillance, using FISA’s traditional procedures even though ECPA generally
prohibits such wiretapping.
Second, if that activity does not qualify as electronic surveillance, as that term is defined in FISA,
but involves the acquisition of foreign intelligence information from international or foreign
communications, then it is not subject to ECPA.47 For example, the interception of an
international telephone call would not be considered electronic surveillance for purposes of FISA
if the target were the person on the non-domestic end of the conversation and the acquisition did

39 Id. at 321–22. See also In re Directives Pursuant to Section 105b of the Foreign Intelligence Surveillance Act, 551
F.3d 1004 (FISA Ct. Rev. 2008) (holding that the foreign intelligence surveillance of targets reasonably believed to be
outside of the United States qualifies for the “special needs” exception to the warrant requirement).
40 See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
41 Id. at 274–75.
42 See In re Terrorist Bombings, 552 F.3d 157, 171 (2d Cir. 2008); see also United States v. Zakharov, 468 F.3d 1171,
1179 (9th Cir. 2006) (“[T]he Fourth Amendment does not apply to searches and seizures by the United States against a
non-resident alien in a foreign country.”).
43 18 U.S.C. §§ 2510–2522.
44 Id. § 2518.
45 Id. § 2516(1).
46 Id. § 2511(2)(e) (providing “it shall not be unlawful for an officer, employee, or agent of the United States in the
normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, as authorized by that Act”).
47 Id. § 2511(2)(f). (explicitly disavowing any application of ECPA to the United States’ acquisition of foreign
intelligence information from international or foreign communications through a means other than electronic
surveillance, as that term is defined in FISA).
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not occur on United States soil. So long as the purpose of that acquisition was to acquire foreign
intelligence information, then it would not be subject to ECPA’s general prohibitions.
Although both exceptions result in the non-application of ECPA, they differ in one important
aspect that is particularly relevant to understanding how Title VII altered FISA. Both ECPA and
FISA provide that the two statutes constitute the exclusive means of conducting electronic
surveillance, as defined in FISA.48 As a result, using the procedures under FISA is compulsory for
those activities that qualify as electronic surveillance but cannot be accomplished by ECPA. For
example, if the government wishes to pursue electronic surveillance for foreign intelligence
purposes that do not relate to a predicate offense required under ECPA, the government must
generally comply with FISA. In contrast, before the FISA Amendments Act, the government was
not required to use FISA’s procedures for wiretapping activities that did not qualify as electronic
surveillance, and which were also exempt from ECPA’s general prohibition on wiretapping
because they involved the collection of foreign intelligence information from international or
foreign communications.49
Executive Orders 12333 and 14086
Issued in 1981, Executive Order 12333 addresses all U.S. foreign intelligence surveillance
activities, including those which may fall outside of FISA’s statutory scheme, such as activities
conducted overseas targeting non-U.S. persons.50 Section 2.5 of Executive Order 12333,51 as
amended,52 delegates to the Attorney General the power to approve the use of any technique for
intelligence purposes within the United States or against a U.S. person abroad. If a warrant would
be required for law enforcement purposes, the executive order requires the Attorney General to
determine in each case there is probable cause to believe that the technique is directed against a
foreign power or an agent of a foreign power.53 The authority delegated by Executive Order
12333 must be exercised in accordance with FISA, but also extends to activities beyond FISA’s
reach.
In 2022, President Joe Biden issued Executive Order 14086, “Enhancing Safeguards for United
States Signals Intelligence Activities.”54 Executive Order 14086 imposes limits on the conduct of
signals intelligence collection by executive agencies, and also includes a redress mechanism

48 18 U.S.C. § 2511(2)(f); 50 U.S.C. § 1812(a).
49 PRIV. & C.L. OVERSIGHT BD., REPORT ON THE SURVEILLANCE PROGRAM OPERATED PURSUANT TO SECTION 702 OF THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT 107 n.471 (July 2, 2014), https://documents.pclob.gov/prod/Documents/
OversightReport/823399ae-92ea-447a-ab60-0da28b555437/702-Report-2.pdf [hereinafter
PCLOB REPORT] (“FISA does not generally cover surveillance conducted outside the United States, except where the
surveillance intentionally targets a particular, known U.S. person, or where it acquires radio communications in which
the sender and all intended recipients are located in the United States and the acquisition would require a warrant for
law enforcement purposes.”).
50 See Foreign Intelligence Surveillance (FISA Section 702, Executive Order 12333, and Section 215 of the Patriot
Act): A Resource Page, BRENNAN CTR. (Oct. 25, 2018), https://www.brennancenter.org/our-work/research-reports/
foreign-intelligence-surveillance-fisa-section-702-executive-order-12333.
51 46 Fed. Reg. 59,941 (Dec. 4, 1981), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4,075 (Jan. 23, 2003);
Exec. Order No. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004); Exec. Order No. 13,470, 73 Fed. Reg. 45,325 (July 30,
2008).
52 50 U.S.C. § 401 note.
53 Exec. Order No. 12,333, § 2.5.
54 Exec. Order No. 14,086, 87 Fed. Reg. 62,283 (Oct. 14, 2022).
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under which individuals may seek review of alleged violations of, among other things, the
Constitution, FISA, or Executive Orders 12333 or 14086.
Executive Order 14086 obliges executive agencies to conduct signals intelligence activities only
in pursuit of “legitimate objectives,” such as understanding or assessing the capabilities,
intentions, or activities of a foreign government; protecting against terrorism, espionage,
cybersecurity threats, or the development of weapons of mass destruction; or protecting the
integrity of elections, political processes, and United States infrastructure from foreign
governments.55 Executive Order 14086 expressly prohibits the use of signals intelligence to
pursue the objectives of suppressing criticism or dissent; suppressing privacy interests;
suppressing a right to legal counsel; or disadvantaging individuals based on ethnicity, race,
gender, gender identity, sexual orientation, or religion.56
Executive Order 14086 also limits the use of “bulk” surveillance to a smaller subset of similarly
enumerated permissible objectives, and only after a determination that the information cannot
reasonably be obtained through targeted collection.57 For purposes of this limitation, “bulk
surveillance” is defined as the collection of large quantities of signals intelligence data that are
acquired without the use of discriminants (for example, specific identifiers or selection terms).58
Executive Order 14086 also includes provisions to limit the dissemination, retention, and access
of or to personal data obtained through signals intelligence.59
Under the redress mechanism established by Section 3 of Executive Order 14086, individuals
may submit complaints to the Civil Liberties Protection Officer within the Office of the Director
of National Intelligence, who is directed to investigate and, as necessary, remediate complaints.60
Executive Order 14086 also directs the Attorney General to establish a Data Protection Review
Court (DPRC) to review the Officer’s determinations upon the request of either the complainant
or the executive agency.61 Unlike the FISC and FISCR, the DPRC does not include federal
judges, or even federal employees, but is instead comprised of data privacy and national security
legal practitioners selected by the Attorney General.62 The DPRC may also be assisted by a
designated “special advocate” who shall, among other things, advocate on behalf of a
complainant’s interests.63
Title VII of FISA
As discussed above, acquisitions that neither take place within the United States nor target a
person who is in the United States generally fall outside the scope of FISA’s definition of
electronic surveillance. For example, the targeting of an international communication of a person
who is abroad through an acquisition that also occurs overseas is not the type of electronic
surveillance covered under FISA. Conversely, targeting the communications of the same person

55 Id. § 2(b)(i). The President may update the list of legitimate objectives and the Director of National Intelligence shall
publicly release any such updates, unless the President determines that doing so would pose a risk to the United States’
national security. Id. § 2(b)(i)(B).
56 Id. § 2(b)(ii).
57 Id. § 2(c)(ii).
58 Id. § 4(b).
59 Id. § 2(c)(iii).
60 Id. § 3(c)(i).
61 Id. § 3(d). See also 28 C.F.R. §§ 201.1–201.12.
62 Exec. Order No. 14,086, § 3(d)(i)(A).
63 Id. § 3(d)(i)(C).
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through an acquisition that occurs within the United States is the type of electronic surveillance
covered under FISA.
These divergent outcomes turn on the geographic location in which acquisition of the
communication occurs, and are independent of the nationality of the target. Under FISA’s
traditional Title I electronic surveillance authorities, if a foreign intelligence acquisition
constitutes electronic surveillance, the government is generally required to obtain a court order to
specifically authorize surveillance of the target. Extending the example above, this means that the
targeting of a U.S. person abroad would not require an electronic surveillance court order if the
acquisition is overseas, while the targeting of a non-U.S. person abroad would require one when
the acquisition is domestic. This disparity leads to varying privacy protections based solely on
where the acquisition of the communication occurs rather than the nationality of the target.
As a general matter, the main effect of Title VII on FISA’s legal framework is to apply FISA’s
protections to overseas targets dependent based on the target’s nationality, and not the location
where the acquisition occurs. Title VII accomplishes this end through three main changes:
 First, it creates a procedure for targeting non-U.S. persons abroad without
individualized court orders, even if the acquisition occurs within the United
States;64
 Second, it imposes a requirement to obtain an individualized court order when
targeting U.S. persons abroad, even if the acquisition occurs abroad;65 and
 Third, it provides procedures that can be used to obtain court orders authorizing
the targeting of specific U.S. persons abroad for electronic surveillance, the
acquisition of stored communications, and other means of acquiring foreign
intelligence information.66
Each of these elements is discussed in the following sections.
Section 702: Targeting Non-U.S. Persons Abroad
Section 702 offers an alternative procedure for acquiring foreign intelligence information despite
the requirements of Title I of FISA or ECPA. Section 702 may only be used to target non-U.S.
persons who are reasonably believed to be outside the United States, for the purpose of obtaining
foreign intelligence information.67 Additionally, Section 702 permits only acquisitions of
information from or with the assistance of an electronic communication service provider.68
Surveillance under Section 702 is subject to FISC supervision through the court’s review of a
certification submitted jointly by the Attorney General and the Director of National Intelligence
(DNI). Except in exigent circumstances,69 the government may not conduct acquisitions under
Section 702 unless the FISC issues an order after finding that the certification complies with

64 50 U.S.C. § 1881a.
65 Id. § 1881c(a)(2).
66 Id. §§ 1881b, 1881c.
67 Id. § 1881a(a), (b)(3).
68 Id. § 1881a(h)(2)(A)(vi). As used in Section 702, the term “electronic communication service provider” includes
communications providers (such as telephone, email, or internet service providers (ISPs)) as well as remote computing
service providers that provide “computer storage or processing services” to the public. Id. § 1881(b)(4).
69 Id. § 1881a(c)(2) (defining exigent circumstances to be situations in which “intelligence important to the national
security of the United States may be lost or not timely acquired and time does not permit the issuance of an order”).
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statutory requirements. The key components of the certification reviewed by the FISC are the
targeting procedures, minimization procedures, and querying procedures that the government
intends to use to govern the selection of targets and the retention, dissemination, use, and
querying of information collected under Section 702.70
Targeting Procedures
Unlike traditional FISA orders authorizing electronic surveillance, Section 702 does not require
the FISC to make probable-cause determinations with respect to individual targets of surveillance
or the facilities at which surveillance will be directed.71 Instead, Section 702 directs the Attorney
General, in consultation with the DNI, to develop targeting procedures that intelligence officials
will use to identify targets for surveillance under Section 702.72 As stated by one federal court,
“judicial review of Section 702 functions as a form of programmatic pre-clearance.”73
The FISC then reviews these targeting procedures to ensure they are reasonably designed to limit
targets to persons reasonably believed to be located outside the United States and to prevent the
intentional acquisition of communications in which all parties are known to be in the United
States.74 Additionally, the government may not intentionally target any persons in the United
States or U.S. persons who are abroad.75 The government may also not engage in “reverse
targeting,” in which an overseas non-U.S. person is targeted with the purpose of targeting a
particular, known person reasonably believed to be within the United States.76
For calendar year 2021, the Office of the DNI estimated that there were 232,432 non-U.S.
persons targeted under Section 702.77
Directives
After identifying a target with the FISC-approved targeting procedures, the government may issue
directives to electronic communication service providers requiring them to provide the
government with “all information, facilities, or assistance” needed to conduct the surveillance in a
manner that does not undermine its secrecy.78 A 2014 report by the Privacy and Civil Liberties
Oversight Board describes how the government has used Section 702 directives to implement
downstream and upstream collection programs.79 In downstream collection, the government

70 Id. § 1881a(j)(1)(A).
71 Id. § 1881a(h)(4), (j)(2).
72 Id. § 1881a(d).
73 United States v. Hasbajrami, 945 F.3d 641, 652–53 (2d Cir. 2019).
74 50 U.S.C. § 1881a(d)(1), (j)(2)(B).
75 Id. § 1881a(b)(1), (3).
76 Id. § 1881a(b)(2).
77 ODNI, ANNUAL STATISTICAL TRANSPARENCY REPORT REGARDING THE INTELLIGENCE COMMUNIY’S USE OF NATIONAL
SECURITY SURVEILLANCE AUTHORITIES at 17 (Apr. 2022),
https://www.dni.gov/files/CLPT/documents/2022_ASTR_for_CY2020_FINAL.pdf [hereinafter ODNI CY2021
REPORT].
78 Id. § 1881a(i).
79 See PCLOB REPORT, supra note 49, at 7 (“There are two types of Section 702 acquisition: what has been referred to
as ‘PRISM’ collection and ‘upstream’ collection.”); Press Release, NSA, NSA Stops Certain Section 702 “Upstream”
Activities (Apr. 28, 2017), https://www.nsa.gov/news-features/press-room/Article/1618699/nsa-stops-certain-section-
702-upstream-activities/ [hereinafter NSA Press Release] (“Under Section 702, NSA collects internet communications
in two ways: ‘downstream’ (previously referred to as PRISM) and ‘upstream.’”).
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typically directs consumer-facing communications service providers—such as internet service
providers (ISPs), telephone providers, or email providers—to provide all communications “to or
from” a “selector” (e.g., an email address) associated with a Section 702 target.80 Upstream
collection similarly involves the collection of all communications “to or from” a selector, but the
requests are directed at telecommunications “backbone” providers (i.e., companies that operate
the long-distance, high-capacity internet cables that interconnect with ISPs’ local networks).81
“About” Collection
On top of collecting communications “to or from” the selector of a particular target, upstream
collection has at times included collection of internet communications “about” the selector (e.g.,
where the target email address is referenced in the body of an email to which the target is not a
party).82 Declassified FISC opinions from 2011 found that “about” collection resulted in the
estimated collection of “tens of thousands of wholly domestic communications each year” by the
National Security Agency (NSA) due to technical limitations in how the government
implemented “about” collection.83 Specifically, “about” collection was implemented by capturing
larger transactions containing multiple discrete communications, in which the selector appeared
somewhere in the larger transaction.84
Upon being notified of this over-collection, the FISC then evaluated whether the previously
approved targeting procedures were no longer reasonable given the prohibition in Section 702
against intentionally acquiring communications in which the parties are all known to be in the
United States.85 The FISC first held that the NSA’s acquisition of wholly domestic
communications through “about” collection was intentional because the NSA knew its
technological limitations prevented it from avoiding the over-collection.86 However, the FISC
noted that the statute only prohibited intentional collection of wholly domestic communications
where the government knew the parties to a communication were all located in the United
States.87 The FISC further noted that, due to technological limitations involved with acquiring
these multi-communication transactions, it would be impossible for NSA to know at the time it
acquires the transaction whether the sender and all intended recipients of any particular discrete
communication contained within the transaction are located inside the United States.88 Thus, the
court held that targeting procedures continued to be “reasonably designed to prevent the
intentional acquisition of any communication as to which the sender and all intended recipients
are known at the time of the acquisition to be located in the United States,” even though NSA
knew with certainty that its collection would result in the acquisition of wholly domestic
communications.89

80 PCLOB REPORT, supra note 49, at 7.
81 Id.
82 Id. at 37.
83 Redacted, 2011 WL 10945618, at *15 (FISA Ct. Oct. 3, 2011).
84 Id. at *14.
85 Id. at *15–17.
86 Id. at *15.
87 Id. at *16.
88 Id.
89 Id. Despite finding the targeting procedures to satisfy statutory requirements, the FISC went on to find that the
minimization procedures did not contain sufficient safeguards to protect wholly domestic communications.
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The NSA later announced in 2017 that it was no longer conducting “about” collection in its
upstream collection activities in order to “retain the upstream collection that provides the greatest
value to national security while reducing the likelihood that NSA will acquire communications
of” persons who are not in contact with a foreign intelligence target.90 During the 2018
reauthorization of Title VII, some legislative proposals would have barred the use of “about”
collection under Section 702.91 Ultimately, Congress amended Section 702 to conditionally
prohibit the resumption of “about” collection unless the Attorney General and DNI provide
written notice of the intent to resume such collection to the House and Senate Judiciary and
Intelligence Committees.92 A declassified FISC opinion from 2018 indicates the court construed
this limitation as applying the use of “about” collection in either upstream or downstream
collection.93
Minimization Procedures
Section 702 uses the same definition of minimization procedures that FISA provides for
traditional FISA electronic surveillance or physical searches.94 Accordingly, such procedures must
be adopted by the Attorney General and be reasonably designed to minimize the acquisition and
retention, and prohibit the dissemination, of nonpublicly available information concerning
nonconsenting U.S. persons consistent with the need of the United States to obtain, produce, and
disseminate foreign intelligence information.95
The same declassified FISC opinions addressing “about” collection discussed in the previous
section also provide an example of how the minimization procedures operate.96 For example, the
procedures required the prompt destruction of a wholly domestic communication upon
recognition unless the NSA Director makes a written determination that “the communication
contains foreign intelligence information or evidence of a crime, or that it falls into another
narrow exception permitting retention.”97 If a communication is a foreign communication that
discusses or mentions a U.S. person, but contains no foreign intelligence, it must be destroyed as
early as practical, but no later than five years from the Section 702 authorization’s expiration.98
Reports based on U.S. person communications may be disseminated only if the U.S. person’s
identity is deleted and replaced with a generic term or symbol.99 In limited circumstances, such as
where the U.S. person is engaged in international terrorism, the identity may be provided if
required for the performance of official duties.100

90 NSA Press Release, supra note 79.
91 See USA Liberty Act of 2017, S. 2158, 115th Cong. § 103(a)(2) (2017); USA Liberty Act of 2017, H.R. 3989, 115th
Cong. § 102(a)(2) (2017); USA RIGHTS Act, H.R. 4124, 115th Cong. § 4 (2017); USA RIGHTS Act of 2017, S. 1997,
115th Cong. § 4 (2017); Preventing Unconstitutional Collection Act, H.R. 2588, 115th Cong. § 2 (2017).
92 50 U.S.C. § 1881a(b)(5).
93 Redacted, 402 F. Supp. 3d 45, 60 (FISA Ct. 2018) (“Here, the text of Section 702(b)(5) does not distinguish between
upstream and downstream collection or otherwise refer to how acquisition is conducted.”), aff’d in part sub nom. In re
DNI/AG 702(h) Certifications 2018, 941 F.3d 547 (FISA Ct. Rev. 2019).
94 50 U.S.C. § 1881a(e)(1).
95 E.g., id. § 1801(h).
96 Redacted, 2011 WL 10945618, at *17–28 (FISA Ct. Oct. 3, 2011).
97 Id. at *17.
98 Id. at *18.
99 Id.
100 Id.
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Although the FISC found these proposed minimization procedures to be sufficient with respect to
ordinary collection of communications “to” or “from” the target, the court found these procedures
to be deficient with respect to multi-communication transactions obtained through “about”
collection, mainly because they failed to make provision for the prompt identification and
segregation of irrelevant communications.101 As a result, communications that were potentially
wholly domestic could be retained for up to five years, effectively maximizing the retention of
such information inconsistent with FISA’s mandate to minimize retention of U.S. person
information.102
Following the FISC’s determination of a Fourth Amendment violation, the government presented
revised minimization procedures to the FISC, which the court approved on November 30,
2011.103 The revised minimization procedures addressed the court’s concerns by requiring the
segregation of those communications most likely to involve unrelated or wholly domestic
communications; requiring special handling and markings for communications that could not be
segregated; and reducing the retention period of upstream collection from five to two years.104
Querying Procedures
In 2018, Congress amended Section 702 to require the Attorney General, in consultation with the
DNI, to adopt querying procedures to govern how information collected under this Section is
searched after it has been collected.105 Such procedures must also include a technical procedure
under which a record is kept of each U.S. person term used for a query.106 If the Federal Bureau of
Investigation (FBI) seeks to query the contents of information acquired under Section 702 using a
U.S. person identifier for a criminal investigation unrelated to national security, it must first
obtain an order from the FISC authorizing such query.107 The court shall issue such an order if it
determines that probable cause exists to believe the contents of communications sought would
provide evidence of criminal activity; contraband, fruits of a crime, or other items illegally
possessed by a third party; or property designed for use, intended for use, or used in committing a
crime.108 A court order for such a query is not required if the FBI determines there is a reasonable
belief that such contents could help mitigate or eliminate a threat to life or serious bodily harm.109
This court-order requirement does not apply to queries of Section 702 information by other
agencies, or to queries by the FBI to obtain foreign intelligence information or to pursue
investigations related to U.S. national security.110 For calendar year 2021, the FBI reported no

101 Id. at *20.
102 Id.
103 Redacted, 2011 WL 10947772, at *1 (FISA Ct. Nov. 30, 2011).
104 Id. at *3–5.
105 50 U.S.C. § 1881a(f)(1).
106 Id. § 1881a(f)(1)(B).
107 Id. § 1881a(f)(2).
108 Id. § 1881a(f)(2)(D).
109 Id. § 1881a(f)(2)(E).
110 Id. § 1881a(f)(2)(F). Other bills considered by Congress during the 115th Congress would have more broadly
required court orders to query Section 702 information using U.S. person terms. E.g., USA Rights Act, S. 1997, 115th
Cong. § 2 (2017) (prohibiting any officer or employee of the United States from conducting U.S. person queries of
Section 702 information except with a court order or in emergency circumstances); USA Liberty Act of 2017, S. 2158,
115th Cong. § 101(a)(2) (2017) (requiring a court order for queries of Section 702 information using U.S. person terms,
except in emergencies).
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such court orders obtained from the FISC, although compliance reviews identified four instances
in which a court order appeared to be required.111
Where the court order requirement does not apply, the standards for performing queries of
Section 702 information are governed by the querying procedures approved by the FISC. The
DNI has publicly released declassified versions of the querying procedures for the FBI, Central
Intelligence Agency (CIA), the National Counterterrorism Center (NCTC), and the NSA.112
Under NSA’s querying procedures, the use of a U.S. person query term to search the contents of
acquired communications must generally be approved by the NSA Office of General Counsel,
based on a statement of facts establishing that the term is “reasonably likely to retrieve foreign
intelligence information.”113 NSA queries of metadata (i.e., non-content information) using a U.S.
person query term similarly require a written statement, but are not subject to approval by the
Office of General Counsel.114 NCTC and CIA querying procedures both generally require a
written statement of facts showing that a U.S. person query term is reasonably likely to retrieve
foreign intelligence information for both content or metadata queries.115
With respect to the FBI, its querying procedures reiterate the statutory court order requirement for
non-foreign intelligence, non-national security U.S. person queries.116 For other U.S. person
queries, FBI’s querying procedures also require a written statement of facts showing that the
query is reasonably likely to retrieve foreign intelligence information or evidence of a crime.117
FBI queries of metadata using a U.S. person term do not require a similar written statement.118
All four agencies’ querying procedures also require recordkeeping of each U.S. person query
term used by the agency, including the identity of the personnel who conducted the query.119 The
agencies will maintain such records for at least five years in a manner to allow the National

111 ODNI CY2021 REPORT, supra note 77, at 22.
112 Attorney General William Barr, Querying Procedures Used by the Central Intelligence Agency in Connection with
Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of
1978,
as
Amended
(Sept.
16,
2019),
https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_Cert_CIA%20Querying%20Procedu
res_10.19.2020.pdf [hereinafter CIA Querying Procedures]; Attorney General William Barr, Querying Procedures Used
by the National Counterterrorism Center in Connection with Acquisitions of Foreign Intelligence Information Pursuant
to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (Oct. 19, 2020),
https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_Cert_NCTC%20Querying%20Proce
dures_10.19.2020.pdf [hereinafter NCTC Querying Procedures]; Attorney General William Barr, Querying Procedures
Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to
Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (Oct. 19, 2020),
https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_Cert_NSA%20Querying%20Proced
ures_10.19.2020.pdf [hereinafter NSA Querying Procedures]; Attorney General William Barr, Querying Procedures
Used by the Federal Bureau of Investigation in Connection with Acquisitions of Foreign Intelligence Information
Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (Sept. 16, 2019),
https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_Cert_FBI%20Querying%20Procedur
es_10.19.2020.pdf [hereinafter FBI Querying Procedures].
113 NSA Querying Procedures § IV.A. Approved terms may be used to query Section 702 information for up to one
year, at which point the approval must be renewed. Id.
114 Id.
115 CIA Querying Procedures § IV.A, B.2; NCTC Querying Procedures § IV.A, B.2.
116 FBI Querying Procedures § IV.A.2.
117 Id. § IV.A.3.
118 Id. at n.4.
119 NSA Querying Procedures § IV.B; FBI Querying Procedures § IV.B; CIA Querying Procedures § IV.B; NCTC
Querying Procedures § IV.B.
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Security Division of the Department of Justice and the Office of the DNI to conduct oversight to
ensure compliance with these procedures.120 A declassified 2019 opinion from the FISCR
addressed a prior version of the FBI’s minimization procedures, under which records of queries
did not distinguish between those that used U.S. person terms and those that did not.121 The court
held that this conflicted with the statutory requirement that the querying procedures “include a
technical procedure whereby a record is kept of each United States person query term.”122
For calendar year 2021, the Office of the DNI reported that NSA, CIA, and NCTC used 8,790
U.S. person query terms to search Section 702 contents.123 CIA and NSA used 3,958 U.S. person
query terms to search Section 702 metadata for the same period.124 FBI reports these statistics
differently, counting the total number of queries using U.S. person terms, as opposed to CIA,
NSA, and NCTC’s practice of counting the number of U.S. person terms used.125 Between
December 2020 and November 2021, FBI estimates it has conducted “fewer than 3,394,053”
queries using a U.S. person term.126
Constitutional Challenges
Several U.S. Courts of Appeals have issued opinions addressing constitutional challenges to
Section 702.127 These cases involve appeals from criminal defendants who have been notified by
the government that incriminating evidence was gathered under Section 702.128 Several of these
defendants have moved to suppress such evidence, arguing it was gathered unconstitutionally.
Typically, these cases evaluate Section 702 under the Fourth Amendment, but one case also
addresses whether Section 702 violates Article III of the Constitution, which limits the
jurisdiction of federal courts to deciding “cases” or “controversies.”129
With respect to the Fourth Amendment, the defendants have mainly argued that Section 702 is
constitutionally defective because of the lack of a traditional warrant supported by an
individualized finding of probable cause. In response, the Second, Ninth, and Tenth Circuits have
unanimously held that where “the target of Section 702 surveillance is a foreign national located
abroad having no substantial connections with the United States, that target is not entitled to
Fourth Amendment protections,” even if the acquisition occurs in the United States.130 The
government was thus not required to obtain a warrant before conducting the surveillance that
targeted a non-U.S. person located abroad.

120 NSA Querying Procedures § IV.B.3; FBI Querying Procedures § IV.B.3, 4; CIA Querying Procedures § IV.B.4;
NCTC Querying Procedures § IV.B.4.
121 In re: DNI/AG 702(h) Certifications 2018 [redacted], 941 F.3d 547, 557 (FISA Ct. of Rev. 2019).
122 Id. at 566-67 (quoting 50 U.S.C. § 1881a(f)(1)(B)).
123 ODNI CY2021 REPORT, supra note 77, at 18-19.
124 ODNI CY2021 REPORT, supra note 77, at 19.
125 ODNI CY2021 REPORT, supra note 77, at 20.
126 ODNI CY2021 REPORT, supra note 77, at 21.
127 United States v. Hasbajrami, 945 F.3d 641, 670 (2d Cir. 2019); United States v. Mohamud, 843 F.3d 420, 424 (9th
Cir. 2016); United States v. Muhtorov, 20 F.4th 558, 594 (10th Cir. 2021), cert. denied, 143 S. Ct. 246 (2022).
128 50 U.S.C. § 1881e (citing id. § 1806).
129 U.S. CONST. art. III, § 2; see United States v. Morton Salt Co., 338 U.S. 632, 641–42 (1950) (“Federal judicial
power itself extends only to adjudication of cases and controversies . . . .”).
130 Muhtorov, 20 F.4th at 594; Mohamud, 843 F.3d at 439 (“[W]hat matters here is the location of the target, and not
where the government literally obtained the electronic data.”); Hasbajrami, 945 F.3d at 662 (“[T]he Fourth
Amendment does not apply extraterritorially to the surveillance of persons abroad.”).
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In Muhtorov v. United States, the Tenth Circuit also addressed the defendant’s claims that Section
702 violates Article III of the Constitution. The defendant argued that Article III prohibits
advisory opinions and requires that courts must adjudicate only “concrete legal issues, presented
in actual cases, not abstractions.”131 While acknowledging that the FISC’s role under Section 702
is different than traditional Article III adjudication, the Tenth Circuit concluded that the FISC is
not issuing advisory opinions under Section 702 because it applies legal principles to facts, and its
determinations are legally binding and not merely advisory.132 The court held that the targeting,
minimization, and querying procedures submitted by the government are “detailed factual
submissions” that the court must measure against Section 702’s requirements.133 The courts’
determinations are therefore “grounded in evidentiary submissions, not abstract and hypothetical
questions.”134
Sections 703 and 704: Targeting U.S. Persons Abroad
As discussed above, Title VII establishes separate procedures for targeting non-U.S. persons and
U.S. persons reasonably believed to be outside the United States.135 Sections 703 and 704,
detailed below, address the targeting of U.S. persons abroad for electronic surveillance and other
types of acquisitions.
Requirement for Court Order
Section 704(a)(2) prohibits the intelligence community from targeting a U.S. person who is
reasonably believed to be abroad unless authorized by the FISC or another provision of FISA.136
This prohibition applies only when the target has a reasonable expectation of privacy and a
warrant would be required if the acquisition was conducted in the United States for law
enforcement purposes.137 Whether a “reasonable expectation of privacy” exists requires both that
an individual “seeks to preserve something as private” and this subjective expectation of privacy
is one that “society is prepared to recognize as reasonable.”138 Although such a determination is
inherently dependent upon the particular circumstances of a given case, it is likely that activities
like physical searches, voice and email wiretaps, or the collection of geolocation information
conducted on foreign soil could require authorization from the FISC based on the target’s
“reasonable expectation of privacy.”139
Scope of Acquisitions
Having made the procedures of FISA compulsory in many foreign intelligence acquisitions in
which U.S. persons abroad are targeted, Sections 703 and 704 then each establish procedures to
provide the requisite FISC orders authorizing such acquisitions. The procedures under Section
703 apply only to electronic surveillance or the acquisition of stored electronic communications

131 Golden v. Zwickler, 394 U.S. 103, 108 (1969).
132 Muhtorov, 20 F.4th at 608.
133 Id.
134 Id. at 609.
135 P.L. 110-261, §101 (codified at 50 U.S.C. §§ 1881–1881g).
136 50 U.S.C. § 1881c(a)(2).
137 Id.
138 Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (internal quotations omitted).
139 See supra note 33–37, and accompanying text.
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or data that would traditionally require an order under FISA. The procedures under Section 704
apply in all other situations where the target has a reasonable expectation of privacy and a warrant
would be required if the acquisition was conducted in the United States for law enforcement
purposes.140 Because the requirements of Section 704 are less stringent than Section 703, the
statute prohibits the use of the former when the procedures of the latter would apply.
Procedures
The judicial procedures under Sections 703 and 704 generally follow the same structure used by
the procedures that already existed in FISA to obtain a court order authorizing electronic
surveillance or physical searches of U.S. persons within the United States. The government must
submit an application for surveillance that identifies the target and the facts and circumstances
relied upon that would justify the belief that the target is a foreign power or an agent of a foreign
power, which the FISC must find to be supported by probable cause.141 Because Title VII is
intended to address targets outside the United States, the court must also find probable cause to
believe that this geographical limitation has been met.142
Both Sections 703 and 704 also authorize short-term acquisitions if the Attorney General
reasonably determines that an emergency exists and there is insufficient time to obtain a court
order.143 Such emergency acquisitions must be followed up with a formal application within seven
days.144
Comparison of Sections 703 and 704
Although they are similar, the procedures under Sections 703 and 704 are not identical. Less
specificity is generally required of the information in the application submitted under Section
704. Section 704 also does not require a statement that the information sought cannot be obtained
by normal investigative means. Section 704 also only requires the minimization procedures to
address dissemination of acquired information.145 In contrast, Section 703 requires the
minimization procedures to address the acquisition and retention of information.
Comparison with Traditional FISA
In at least two important ways, the standard that must be met under Sections 703 and 704 before
the FISC will issue an order authorizing an acquisition is less stringent than the standard that has
been traditionally required under FISA (in those situations where the activity qualifies as
electronic surveillance and is therefore subject to FISA).
First, FISA traditionally required an application to identify the facilities to be searched or subject
to electronic surveillance, and to show that those facilities are being used, or are about to be used,
by the target. Second, FISA traditionally permitted U.S. persons to be targeted only if they are
also linked to international terrorism or clandestine intelligence activities.146 Neither Section 703
nor Section 704 contains these requirements.

140 Id.
141 50 U.S.C. §§ 1881b(b)–(c), 1881c(b)–(c).
142 Id.
143 Id. §§ 1881b(d), 1881c(d).
144 Id.
145 Id. § 1881c(c)(1)(C).
146 Id. § 1801(b).
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Because all electronic surveillance was subject to FISA’s standards under prior law, and Section
703 only applies to stored data if FISA would have traditionally required an order, it may be fair
to characterize Section 703 simply as a relaxation of FISA’s requirements when the target is a
U.S. person abroad. The situation is different when considering the effect of Section 704 on prior
law. The general prohibition embodied in Section 704 requiring a court order supported by
probable cause when targeting U.S. persons abroad expands the scope of FISA to areas that were
previously beyond its scope. For example, targeting the international communications of a U.S.
person located abroad was generally not considered electronic surveillance if the acquisition did
not occur on U.S. soil. Therefore, while no court order would have been traditionally required
under FISA, the addition of Section 704 brings that conduct within the statute’s ambit.
Effect of Sunset
Title VII of FISA is scheduled to sunset on December 31, 2023.147 The sunset provision also
includes special “transition procedures” that would apply to orders authorizing surveillance
activities under Title VII that are in effect on December 31, 2023,148 and would permit the
continued effect of such orders until their normal expiration dates.

Author Information

Edward C. Liu

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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147 P.L. 110-261, § 403(b)(1), 122 Stat. 2474 (2008), as amended by P.L. 112-238, §2(a)(1), 126 Stat. 1631; P.L. 115-
118, § 201(a)(1), 132 Stat. 19 (2018).
148 P.L. 110-261, § 404(b), 122 Stat. 2474 (2008) (codified as amended at 50 U.S.C. § 1801 note).
Congressional Research Service
R47477 · VERSION 1 · NEW
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