Document Type
Article
Publication Date
2025
Publication Title
Tennessee Law Review
Abstract
In April of 2024, Congress passed the Reforming Intelligence and Securing America Act ("RISAA"). This bill reauthorized Section 702 of the Foreign Intelligence Surveillance Act ("FISA'), an important counterterrorism authority that was intended to make it easier for the government to spy on foreign terrorists but which has been repeatedly abused to spy on Americans. While RISAA enacted modest surveillance reforms, it also included substantial expansions of the government's spying powers. Moreover, it largely left intact the existing oversight regime for Section 702, which is deficient as a matter of law, policy, and fact.
This article assesses the extent to which RISAA will achieve its stated aims of empowering intelligence agencies to safeguard our national security while enhancing privacy protections for Americans. It concludes that RISAA is a mixed bag: It will help continue some positive compliance trends, but opens up troubling new opportunities for surveillance abuse. The fundamental problem is that Congress has delegated to the courts the kind of programmatic oversight that Congress is best positioned to perform, meanwhile, judicial doctrines and aggressive government lawyering have prevented the courts from performing the sort of individualized review to which they are best suited.
Accordingly, future Congresses should not reauthorize Section 702 without significantly overhauling how the authority is overseen. Specifically, Congress should expand FISA amici's powers to challenge government surveillance, take for itself the responsibility of overseeing the programmatic implementation of Section 702, and direct the Foreign Intelligence Surveillance Court to perform individualized oversight of specific, individualized uses of the authority. Together, these reforms will help ameliorate the significant legal and policy deficiencies of the current Section 702 oversight regime.
Volume
92
First Page
1235
Recommended Citation
Noah C. Chauvin, Increasing Congressional Oversight of FISA Section 702 after RISAA, 92 Tenn. L. Rev. 1235 (2025).