Warrantless Surveillance

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Warrantless Surveillance

Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes unrelated to national security.

Given our nation’s history of abusing surveillance authorities and the covert nature of the legislation, we should be concerned that FISA and Section 702 is and will be used to disproportionately target disfavored groups—whether minority communities, political activists, or even journalists.

Introduction

This web page traces the evolution of the Foreign Intelligence Surveillance Act (FISA) from its origins as a safeguard against domestic surveillance abuses to its transformation into a powerful framework for global intelligence collection—and the profound civil liberties consequences that followed. Organized chronologically, it documents how crisis-driven expansions after 9/11 enabled warrantless surveillance authorities, how those authorities were codified through Section 702, and how practices such as “incidental collection” became normalized within U.S. intelligence operations.

Critically, this evolution has had a disparate and enduring impact on Asian Americans, particularly those with familial, professional, or cultural ties across the Pacific. Because Section 702 targets non-U.S. persons abroad, communications involving Asian Americans are far more likely to be swept into government databases, queried without warrants, and treated through a lens of foreign suspicion. Over time, these dynamics have reinforced the “perpetual foreigner” stereotype, contributed to racial profiling in national security investigations, and blurred the line between foreign intelligence gathering and domestic civil rights protections.

FISA and its amendments are not the only laws subject to misuse and abuse in the name of national security. The U.S. Constitution protects individuals against unreasonable searches and seizures; however, under Section 702 of FISA, the U.S. government engages in mass, warrantless surveillance of electronic communications. Information collected this way can be used to prosecute innocent individuals or for alleged crimes unrelated to national security. Given the nation's history of surveillance abuse and program secrecy, there is significant concern that Section 702 is and will continue to be used to disproportionately target disfavored groups, including minority communities, political activists, and journalists.

The current authorization of Section 702 is set to expire on April 20, 2026.

What is FISA? What is Section 702?

The Foreign Intelligence Surveillance Act, commonly abbreviated as FISA, was enacted in 1978, establishing regulated procedures for physical and electronic surveillance as a means to collect foreign intelligence information. The act was designed to create a legal framework that balanced national security needs with constitutional protections by requiring judicial oversight of domestic intelligence surveillance through a specialized court, the United States Foreign Intelligence Surveillance Court (FISC). FISA’s enactment stemmed from widespread revelations of government surveillance abuses conducted in the name of national security during the Vietnam War and the Watergate era. Under the legislation, federal officials must first obtain approval from the Attorney General, Acting Attorney General, Deputy Attorney General, or the Assistant Attorney General for National Security before seeking a FISC order authorizing electronic surveillance or physical searches.

Section 702 is a provision of the FISA Amendments Act of 2008, establishing procedures for acquiring foreign intelligence when communications travel through domestic communications infrastructure. For example, a U.S. person’s email communications could be collected if they are in contact with a person reasonably believed to be located outside of the U.S. who is in possession of “foreign intelligence information.” Under 702, the Attorney General and Director of National Intelligence are authorized to make and submit to FISC written certifications for the purpose of acquiring foreign intelligence information. Essentially, this legislation allows the government to surveil noncitizens overseas without a warrant.

Soon after the 9/11 terrorist attacks in 2001, the George W. Bush Administration began a series of questionable secret surveillance practices, including warrantless domestic wiretapping. Major amendments to FISA were subsequently made to legitimize and empower some of these secret operations. FISA was transformed into massive warrantless surveillance programs shrouded in secrecy, and Chinese Americans continue to be disproportionately impacted.

FISA Amendments Act of 2008

The FISA Amendments Act of 2008 added a new Title VII to FISA, authorizing targeting of non-U.S. persons outside the U.S. Section 702 details additional limitations to such surveillance, requiring that the surveillance must be conducted in a manner consistent with the Fourth Amendment to the U.S. Constitution.

Asian Americans Disproportionately Impacted

Soon after the enactment of Section 702, the Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) declared economic espionage to be a major security threat to the U.S.In May 2017, the Committee of 100 presented a white paper, “Prosecuting ‘Chinese Spies’: An Empirical Analysis of the Economic Espionage Act” by legal scholar Andrew Kim of South Texas College of Law. Among other disturbing findings, the study showed an immediate spike in prosecutions against Asian Americans in 2008. A series of innocent naturalized Chinese Americans in private industry, federal government, and academia were accused of spying for China, but all of them were subsequently dismissed without explanation.Despite the heroic efforts of individuals to defend themselves against all odds, they and their families have suffered devastating damages in legal expense, emotional trauma, and reputational devastation.

Serious Constitutional Issues

When the FISA Amendments Act of 2008 was due for reauthorization in 2012, little was known about the warrantless, mass surveillance programs because they were shrouded in secrecy. Today, we know that even the FISA court had sharply criticized in its written opinion (declassified in April 2017) that the government reporting efforts were lacking in “institutional candor” and represent “a very serious Fourth Amendment issue.” This same FISA court has approved more than 99.5% of the government’s requests since the enactment of FISA in 1978. FISA and its amendments are not the only laws subject to misuse and abuse by the authorities in the name of national security. The magnitude of their adverse implication and impact has been difficult to assess due to the inherent secrecy and complexity; however, we do know that protection of privacy and civil liberty has been grossly inadequate under FISA and its amendments.

Perspectives Supporting and Opposing FISA 702

At its core, FISA balances two opposing extremes—national security and the protection of civil liberties. This section discusses the rationale behind both support and criticism of the legislation.

Support of FISA

Proponents of FISA highlight the legislation's role as a crucial safeguard of American national security, emphasizing that proactive, preventative foreign intelligence surveillance protects the U.S. from critical threats.

Christopher Wray, former Director of the Federal Bureau of Investigation (FBI), advocated this position in front of the House Committee on Homeland Security in November 23, saying “loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risk.” He continued, “for the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats.”

At the same hearing, the Director of the National Counterterrorism Center (NCTC) echoed these concerns, stressing the need to be able to determine “whether international terrorists could gain access to and pose a threat to the homeland.”

Criticism of FISA

On the other hand, opponents of FISA contend the legislation allows the U.S. government to collect sensitive information from or about U.S. citizens, threatening the integrity of the Fourth Amendment and the guaranteed civil liberties of Americans. Additionally, civil rights groups argue the legislation unfairly targets immigrants and people of color. This is not only because FISA targets individuals based on national origin, but also because immigrants are more likely to be in contact with non-U.S. citizens located abroad, and therefore their communications are more likely to be examined and investigated.

On its website, the Electronic Frontier Foundation stated that FISA does not align with the intention of the American national security program, and “people on U.S. soil should not have their communications collected without a warrant.” The American Civil Liberties Union encourages people to be concerned that “Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.”

Perspectives of Policymakers

Various policymakers and political leaders have expressed conflicting views about the legislation, with some vacillating between support and criticism, underscoring the hypocrisy and political expediency often present in public office. At various times in their careers, Kash Patel and Tulsi Gabbard’s statements have exhibited this opportunistic behavior, and their statements are listed below.

Kash Patel, Director of the Federal Bureau of Investigation (FBI):

During FBI director Kash Patel’s confirmation hearing on January 30, 2025, Senator John Cornyn (R-TX) asked Patel whether he viewed a warrant requirement to access the stored communications of Americans to be “workable” in the FISA context. Patel responded that such a warrant requirement “would not be comportive” to protecting American citizens. In other words, Patel did not see the necessity of a warrant in accessing stored communications of Americans, and thus he supports FISA Section 702 as it is currently written.

In April 2024, less than a year prior, Congress reauthorized Section 702 and expanded the government’s surveillance powers. At that time, Patel publicly criticized the law’s passage, stating that former FBI director Christopher Wray “was caught last year illegally using 702 collection methods against Americans 274,000 times,” demonstrating his dramatic change of opinion in eight months.

Tulsi Gabbard, Director of National Intelligence:

In December 2020, Tulsi Gabbard, then U.S. Representative for Hawaii, collaborated with Rep. Thomas Massie (R-Ky) to propose legislation limiting government surveillance of Americans. This legislation would have repealed Section 702. Additionally, Gabbard criticized the intelligence community, saying it “has not been transparent or honest with the American people or even Congress about what they’ve been doing.”

However, after her nomination in early 2025, Gabbard publicly supported Section 702, referring to it as a “critical” program that “must be safeguarded to protect our nation while ensuring the civil liberties of Americans.” Recognizing her sudden apostasy, Gabbard said her “prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens,” citing FISA reforms enacted since then that address those issues.

Impact on Asian Americans

Warrantless surveillance in the U.S., conducted through legislation such as Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the China Initiative, has disproportionately affected minority communities and immigrants, including many Asian Americans. This section highlights the cases of Angwang, Xiaoxing Xi, and Gang Chen; however, these examples represent only a small fraction of those impacted. For a more comprehensive overview, please consult the full Impacted Persons list or the China Initiative webpage.

Xiaoxing Xi 郗小星

Xiaoxing Xi was born and raised in China, graduating from Peking University with a BSc in physics in 1982 and later with a PhD in 1987. Following the completion of his education, Xi worked as a researcher in Germany before moving to the U.S. with his wife in 1989. Xi and his wife worked at Rutgers University and the University of Maryland, eventually settling in Pennsylvania. Xi’s wife works as a physics professor at Pennsylvania State University, while Xi became a professor at Temple University in 2009 and the chairman of Temple University’s physics department in 2014.

In 2015, the Department of Justice accused Xi of illegally sending trade secrets to China, threatening him with 80 years in prison and $1 million in fines. Police raided Xi’s home and arrested him at gunpoint in front of his wife and two daughters. Xi later learned that agents from the Federal Bureau of Investigation had been listening to his phone calls and reading his emails for months, possibly years. Some of the investigations against him had been authorized by the Foreign Intelligence Surveillance Court, but many were completely warrantless and conducted under Section 702 of FISA and Executive Order 12333.

Four months later, charges were dropped after Xi and his legal team proved that the government had failed to understand the science behind the accusations, but the damage was already done. Temple University suspended Xi from his position as chair of the Physics Department and forced him to take administrative leave, tarnishing his academic and professional reputation.

In October 2019, Xi received the Andrei Sakharov Prize, which recognizes "outstanding leadership of scientists in upholding human rights."

Baimadajie Angwang 昂旺

On September 21, 2020, Baimadajie Angwang, a New York Police Department (NYPD) officer, was arrested and charged with allegations of acting as an illegal agent of the People’s Republic of China, wire fraud, making false statements, and obstructing an official proceeding. He faced up to 55 years in prison and was considered a flight risk by the NYPD.

Angwang was arrested at his home in Long Island in front of his wife and two-year old daughter. He spent six months in solitary confinement in Brooklyn before he was granted bail.

On January 19, 2023, all charges against Angwang were abruptly dropped, but the NYPD has refused to reinstate him and has continued its internal investigation against him. A year later, New York Police Commissioner Edward Caban ordered the immediate firing of Angwang, choosing a harsher penalty than what was recommended by the NYPD disciplinary judge.

Angwang moved to the U.S. as a teenager, enlisted in the Marines, and served in Afghanistan. He is a naturalized citizen.

To this day, much of the evidence against him and the reason the charges were dropped remain classified, highlighting the covert nature of American intelligence surveillance and the disproportionate impact of warrantless surveillance on minority communities and immigrants.

Gang Chen 陈刚

Born in Nanzhang, China, Gang Chen received an undergraduate and a bachelor's degree in engineering from the Huazhong University of Science and Technology, before pursuing a PhD in mechanical engineering from the University of California, Berkeley. After completion of his PhD, Chen worked at Duke University and the University of California, Los Angeles, before settling at the Massachusetts Institute of Technology (MIT) in 2001. A year prior, he became a naturalized U.S. citizen.

In January 2021, Chen was arrested by the Federal Bureau of Investigation, charged with wire fraud, failing to file a foreign bank account report in some tax years, and making false statements on his tax returns. The indictment provoked strong criticism, inciting the “We Are All Gang Chen” campaign and a massive outcry from the MIT community.

The Department of Justice dropped all criminal charges against him on January 20, 2022.

Timeline of Events

APA Justice has created a comprehensive, interactive timeline chronicling the history of the Foreign Intelligence Surveillance Act and relevant context. Access the timeline here.

Below, this webpage lists a brief summary of the five sections included in the timeline.

I. Pre-FISA

Prior to the enactment of the Foreign Intelligence Surveillance Act, concerns over government surveillance malpractice began to emerge, causing both legislators and the American public to pay more attention to national security and the protection of civil liberties.

A decade before the enactment of FISA, the U.S. Supreme Court redefined the definition of a “search” or “seizure” under the Fourth Amendment in Katz v. U.S. Five years later, the Watergate scandal caused public outrage and increasing concerns of government abuse due to the burglaries and wiretapping that defined the crime.

II. The Origin (1978–2007)

This section describes the events following the initial enactment of FISA, including an executive order and the events of the case of Dr. Wen Ho Lee. Over two decades after the enactment of FISA, terrorists hijacked four airliners and crashed them into buildings, culminating in the deadliest terrorist attack in global history. Following 9/11, President Bush and the U.S. government enacted numerous stringent national security measures, including warrantless wiretapping of American citizens that was revealed by The New York Times. This controversy led Congress to seek a permanent statutory framework, culminating in the FISA Amendments Act of 2008.

III. Codification and the Rise of "Incidental Collection" (2008–2017)

In 2008, Congress enacted the FISA Amendments Act of 2008, which included a new section, Section 702, that authorizes the targeting of non-U.S. citizens reasonably believed to be abroad. When the Amendments Act expired in 2012, Congress reauthorized it for another five years. In 2013, former NSA contractor Edward Snowden exposed the scope of U.S. mass surveillance under Section 702, further igniting public attention and discontent. Following the formation of APA Justice Task Force (APA Justice) in 2015, the Committee of 100 (C100), APA Justice, and a variety of civil rights groups contributed to and published a variety of letters and educational documents, drawing attention to racial or ethnic profiling of Asian Americans under FISA.

IV. The China Initiative & Racial Profiling (2018–2023)

In January 2018, Congress reauthorized Section 702 for six years, extending it until 2024. Eleven months later, the Department of Justice launched the China Initiative, a broad enforcement effort intended to counter alleged economic espionage and intellectual property theft linked to China. Over time, numerous cases under this initiative collapsed or were dismissed, revealing patterns of racial profiling, overreach, and insufficient evidence.

V. Modern Reform and the 2026 Reauthorization (2024–Present)

In April 2024, Congress again extended Section 702 for another two years, establishing the Reforming Intelligence and Securing America Act with a new expiration date of April 20, 2026. Since then, numerous analyses have been published, examining the potential future of the legislation. In May 2025, Federal Bureau of Investigation Director, Kash Patel, abruptly shut down the Office of Internal Auditing, a watchdog agency established in 2020 as a direct response to controversy surrounding the FBI’s use of Section 702.