What Is the FISA Act and Section 702?

January 12, 2018, 5:17 PM UTC

President Donald Trump revealed he might not understand the Foreign Intelligence Surveillance Act when he tweeted his displeasure with a House vote.

“’House votes on controversial FISA ACT today.’ This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” Trump tweeted Thursday.

Two hours later, he walked that back.

“With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!” he followed up.

Trump might’ve had a lesson on what the FISA act is in between the two tweets. According to the Washington Post, House Speaker Paul Ryan (R-Wisc.) called Trump to explain the law after Trump’s first tweet.

For those of us not tutored by Ryan, there’s another way.

What is the FISA Act, and what’s Section 702?

The Foreign Intelligence Surveillance Act, or FISA Act, outlines U.S. procedure for physical and electronic surveillance of foreign powers and their agents suspected of espionage or terrorism.

Only Section 702 of the act was up for a vote on Thursday. Section 702 “allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats.” Section 702 can’t be used to surveil American citizens.

Trump dossier
Christopher Steele, the former MI6 agent who set-up Orbis Business Intelligence and compiled a dossier on Donald Trump, in London where he has spoken to the media for the first time.Victoria Jones/PA Images PA Images via Getty Images
Victoria Jones—PA Images via Getty Images

While Trump’s displeasure stemmed from his understanding that FISA was used in the creation of Christopher Steele’s famed Trump dossier, the act is more generally used to pursue foreign terrorists.

“This is about foreign terrorists on foreign soil. That’s what this is about, so let’s clear up some of the confusion here,” Ryan said on the House floor Thursday.

What’s required to surveil suspects using the FISA Act?

The government must have a documented foreign intelligence purpose for surveilling anyone using Section 702. Section 702 can’t be used to target any U.S. citizen, “any other U.S. person” or any foreign citizen within the United States. The government can’t use Section 702 to target a non-U.S. citizen outside the United States if the purpose behind that surveillance is gaining information from someone within the United States.

Why did Trump’s tweets start a Congressional panic?

The government doesn’t need to gain an individual court order to target each person under the authority of Section 702. Instead, the Foreign Intelligence Surveillance Court and Congress provide annual certifications.

That’s what was up for a vote Thursday. And that’s why lawmakers were so concerned after Trump seemed to oppose the certification.

The House voted later in the day to renew the program. Next, the renewal will go to the Senate.