A new report on section 702 of FISA from the Privacy and Civil Liberties Oversight Board

The Privacy and Civil Liberties Protection Board (PCLOB) has just released a comprehensive staff report on section 702 of the Foreign Intelligence Surveillance Act (FISA). Since Congress must reauthorize section 702 or let it die this month, the report could hardly be more timely. And its conclusions make a strong case for reauthorizing the provision.

• The report reaffirms the value of section 702 intelligence, including queries seeking information on US persons. The PCLOB learned of a number of threats to human life and infrastructure that were thwarted by data gleaned from US person inquiries; more generally, almost two-thirds of the President’s Daily Brief contained section 702 information in 2025.
• Compliance is much improved. Targeting compliance continues to flirt with perfection, with compliance rates over 99%. In past reviews of the program, FBI compliance with the US person query rules has been a sore spot. It has triggered heavy Congressional criticism and numerous reforms. The PCLOB reports that the FBI has implemented all of the most recent query rules with 98.5% compliance, and that FBI US person inquiries have continued to drop dramatically, from about 57,000 in 2023 to 7400 in 2025. The PCLOB infers from the decline that statutory and administrative changes are deterring unnecessary queries, but it also raises a concern that the reforms may have made FBI agents reluctant to conduct proper US person queries.

The report is also a fount of information about how section 702 and the statutory changes adopted in 2024 are working.

• It demystifies the debate over an FBI filtering tool. The dropdown menu allowed agents to narrow their queries to focus on particular participants, some of whom might be US persons. Narrowing the data in this way was not originally seen as a separate query but DOJ has concluded it should be. Use of the tool now is recorded and restricted as though it constitutes multiple separate queries.
• It reports on implementation of the expanded definition of “electronic communications service providers” who must intercept communications under 702. The change was made necessary by a narrow FISA court ruling that excluded important intermediaries that have emerged in recent years. Opponents claimed that the new definition would be used to impose intercept obligations on a range of Mom-and-Pop companies; DOJ assured the PCLOB that the expanded definition is being applied only to services that the ruling had unexpectedly put off limits.
• In a section rendered somewhat opaque by classified information rules, the report questions whether the intelligence community is fully carrying out the intent behind Congress’s expansion of border vetting using section 702. On the one hand, it notes the intelligence community’s view that the expanded focus on drug trafficking has had a “monumental” and “unparalleled” impact on the government’s ability to identify transnational criminal activity. On the other hand, it notes that the rules for vetting individuals have not fundamentally changed; in general NSA only disseminates US person information in response to vetting inquiries if the information is necessary to protect against terrorism or drug trafficking and “reasonably believed to contain significant foreign intelligence information.” These limitations were imposed after an amicus focused the FISA court’s attention on the risk that vetting would lead to disclosure of US persons’ identities. I fear the limits may be overkill in the vetting context. If there is evidence in intelligence files that someone seeking to enter the country is tied to an American engaged in drug smuggling, does the American’s name have significant foreign intelligence value? If it doesn’t, should the information be withheld from border authorities? These are hard questions, and it’s not clear how Congress intended them to be answered. Given the limits imposed by its classified nature, I’m not sure we even have enough facts to debate them.
• According to the report, other reforms from 2024 are being carried out without much drama:
  • An FBI internal office now reviews all US person queries and a sample of other queries
  • DOJ also audits every FBI query for US person information on a weekly basis
  • FBI personnel now get training on 702 rules every year
  • FBI agents face additional penalties for negligence and misconduct in making or approving US person queries, and the bonuses and promotions of field office leaders depend in part on their office’s 702 compliance record.
  • Amici now comment on all annual certifications of the section 702 procedures (it was this amicus participation that led to additional restrictions on US person disclosures during border vetting)
  • Members of Congress now have some access to FISA court proceedings, but as the PCLOB notes disputes remain over the constraints imposed by DOJ on that access

All in all, the PCLOB report provides a detailed picture of section 702 as it stands today. It may be particularly valuable to members of Congress who didn’t want to support reauthorization without an assurance that this administration was implementing the 2024 act’s reforms in good faith.  The PCLOB report leaves little doubt on that score.

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