After Congress in April passed two short-term extensions of Section 702, a statute that allows the U.S. intelligence community to collect on telecommunications among foreigners outside of the United States, I spoke with former NSA general counsel Glenn Gerstell.
It was a substantive conversation that documents how the statute has been getting increasingly harder to reauthorize and why. Here’s the context:
Supporters of Section 702, especially those in the intel community, says it is an irreplaceable tool for catching spies, terrorists, hackers, and drug traffickers. It was used in the Delta Force operation to capture Nicolas Maduro in Venezuela, to learn about Vladimir Putin’s inner circle and Russian atrocities in Ukraine, to stop shipments of precursor chemicals of fentanyl from China, to gather intel on Hamas in the wake of October 7th.
Critics, especially civil liberties organizations, say 702 amounts to warrantless surveillance of U.S. citizens. Their concerns have to do with incidental collection on Americans, who may be in communication with foreign targets, and queries in the resulting databases. In years past, the FBI has admitted to misuse — the most egregious of which may be when agents used their 702 database to search Jan. 6 and Black Lives Matter protesters.
Among the politicians who get to decide on the conditions for 702’s reauthorization, the debate has sort of turned upside-down.
President Donald Trump has pushed for an extension, but he previously conflated 702 with a different authority that conducted surveillance on his 2016 campaign. Former 702 critic Rep. Jim Jordan (R-Ohio), who chairs the House Judiciary Committee, has become one of 702’s biggest champions. He said, “We got something like 56 reforms in the legislation last year, and they’ve made a huge difference.”
Meanwhile House Minority Leader Hakeem Jeffries warned that House Democrats have concerns about potential 702 abuse because the FBI is now led by Kash Patel. Rep. Jamie Raskin (D-Maryland) who is the House Judiciary Committee ranking member, has said, “The safeguards put in place in 2024 have been badly eroded by the Trump Administration… To trust that any recent reforms are working, we would have to take President Trump at his word.”
As part of the 2024 reforms, FBI agents now have to produce a written justification for every query on a U.S. citizen. And Glenn recently cited the numbers of those searches in the FBI’s 702 database. They have decreased dramatically — from 119,000 in 2022 to 7,413 in 2025.
In our video interview, Glenn suggested that agents’ fears of misuse are actually leading to a chilling effect that could lead to missed threats.
“The Privacy and Civil Liberties Oversight Board, which just issued a staff report on 702 last month, and the Office of the Inspector General of the Justice Department both said, separately, that they’re worried that the number dropped so much that maybe there’s been a chilling effect on the average FBI agent who’s sort of scared to run this query because there’s so many things that are going to be checked and double-checked and triple-checked. That maybe it’s had the chilling effect of cutting off some queries that we’d want to make,” he said.
Glenn also described a hole in the U.S. intel community’s surveillance which could, one day, obliterate our telecommunication dominance and nullify this whole debate.
“You could envision a day, which I don’t think is likely to happen but, one could envision a day when American communications providers are not so all-powerful and pervasive and the world starts using other things. The best example of that is in China. There’s about a billion people in China who are using WeChat and other native Chinese applications that are not subject to 702 directives.”
That and the rest of our video interview is available below to paid subscribers. I am immensely grateful to that bunch because they are the ones who make my reporting possible.
