Aaron Schwartz/Sipa USA via AP Images
Director of National Intelligence Tulsi Gabbard, right, and FBI Director Kash Patel arrive at a Senate Intelligence Committee hearing, March 25, 2025, on Capitol Hill in Washington.
Earlier this month, Director of National Intelligence Tulsi Gabbard released a report on the most well-known aspect of the United States’ mass surveillance apparatus: Section 702 of the Foreign Intelligence Surveillance Act (FISA). The report, which discloses surveillance actions undertaken during the last year of the Biden administration, details a marked uptick in querying of terms associated with U.S. persons, a decrease in the number of persons queried by the Federal Bureau of Investigation (FBI), and most notably, an expansion of the 702 authority to include the war on drugs.
Signed into law in 2008 by George W. Bush, the 702 authority amended a 1978 law to allow mass communications collection without a warrant, as long as broad rules of engagement from the secretive Foreign Intelligence Surveillance Court (FISC) were followed. (In reality, the FISC acts as a rubber stamp for just about every request that comes across its desk.) Even marginal attempts to reform 702 authority when its renewal comes up every few years have been met with unprecedented vitriol and leaking from intelligence officials enraged at any check on their ever-increasing powers.
Civil liberties advocates have repeatedly pointed to the fact that millions of Americans’ communications are routinely swept up in FISA surveillance, even if the marginal safeguards implemented by Congress constrain the most active FBI surveillance of U.S. persons. The intelligence agencies try to point to the first letter of FISA, “foreign,” to argue that the intention and bulk of surveillance collection is targeting non-U.S. persons and is by agencies like the National Security Agency (NSA) and Central Intelligence Agency (CIA), which are, at least on paper, barred from domestic surveillance.
But of course, the 702 back door allows for intercepting any communication with a targeted non-U.S. person, which includes millions of communications between non-U.S. and U.S. persons. This underscores why the new ODNI report is so important: It suggests that the authority is being broadened to include new ranges of targets.
Just four lines of text in the 44-page report expose this new direction: “In 2024, the Government submitted applications for the renewal certifications and a new certification for counternarcotics. In March 2025, the FISC approved the renewal certifications for 2025, and in April 2025, the FISC authorized the new certification for counternarcotics. The IC will process the opinions for subsequent public release under FISA Section 1872.”
Neither Congress nor the Foreign Intelligence Surveillance Court is willing to curb powers that are increasingly being turned on lawful permanent residents and U.S. citizens.
Let’s decode that. The CIA and NSA routinely use FISA for national-security intelligence gathering and anti-narcotics trafficking operations, but this shows an expansion of that effort to allow the FBI to categorize narcotics trafficking as “foreign intelligence.” The fearmongering around fentanyl (even as Trump has proposed cutting the Narcan program that prevents overdose deaths), specifically claims that foreign countries are using it as a form of pharmaceutical terrorism, has implications for the FBI’s domestic surveillance of U.S. citizens through the 702 authority back door. By broadening foreign targets, so too does the intelligence community broaden the swath of Americans caught up in the search.
In the latest round of toothless congressional FISA oversight, elected officials settled on a highly duplicitous bill (the Reforming Intelligence and Securing America Act) intended to placate millions of citizens concerned about their private communications being hoovered up without a warrant. In the same stroke, the amendment calmed the massed forces of the intelligence community, which trotted out a tried-and-true playbook of intimidation and coercion to ensure their 702 powers were kept intact.
While politicians carved a loophole in the bill to ensure that they are notified if and when a FISA target lands on their back, the constituents they represent failed to secure any such protection. The final version of the legislation cut a proposed amendment that would have required warrants for FISA searches, and simultaneously broadened the intelligence community’s powers to commandeer communications from corporate providers.
It now seems that an expansion of 702 collection to compel corporate data brokers’ cooperation wasn’t enough for the intelligence community. The intelligence community has now secured a broadening of collection authorities related to counter-narcotics. And while the push was made under the Biden administration, it shows that neither Congress, nor the Foreign Intelligence Surveillance Court, or even a liberal president is willing to curb powers that are now increasingly being turned on lawful permanent residents, and in several cases, U.S. citizens.
Thanks to the FISC’s rubber-stamping, drug trafficking surveillance is likely the tip of the iceberg. FBI director Kash Patel, DHS chief Kristi Noem, and border czar Tom Homan have all made it known that U.S. intelligence agencies are committed to working together to target immigrants, green card holders, foreign nationals in the country on student visas, and law-abiding Americans who disagree with the sitting administration’s policies.
The 702 authority is just one part of a much larger surveillance apparatus that, across multiple agencies, gathers information on U.S. citizens. But in the lines of the ODNI report noting the expansion of 702 counter-narcotics surveillance, a window is opened into the standard operating procedure of America’s spies. Regardless of administration and regardless of political justification, no amount of surveillance, congressional funding, or authority will ever be enough.
As the war on terror slowly runs out of juice, and both politicians and intelligence officers grasp for the next catalyst to juice America’s coffers for new equipment and powers, the Trump administration, in no small part aided by Biden’s own director of national intelligence, Avril Haines, is fomenting a holy trinity of fear, summoned from drug-smuggling immigrants, prepubescent protesters, and people who hate Tesla.
What was once a power intended to monitor hostile actors in hostile states is continuously bending inward, following a post-9/11 trend that views ordinary citizens with their own political views as an enemy within. The FBI’s mandate to serve as both a domestic and international spy agency has left it confused about who the real threat is, nevertheless enabled by Congress and successive presidents to ensnare more and more Americans in an ever-increasing dragnet that is poised to include expressers of generalized dissent.
During Tulsi Gabbard’s confirmation hearing, the lieutenant colonel was repeatedly pressed on her impressive record defending Edward Snowden and her long-standing criticism of the FISA 702 authority. “If it wasn’t for Snowden, the American people would never have learned the NSA was collecting phone records and spying on Americans,” Gabbard wrote in 2019, before she was forced to disavow her civil libertarian impulses amidst her DNI confirmation hearing. She now finds herself in what is allegedly the most powerful intelligence role in government. Whether she will capitulate to the criminalization and surveillance of dissent remains to be seen.
