The Senate Intelligence Committee’s January 30, 2025, confirmation hearing for former Representative Tulsi Gabbard, President Trump’s nominee for Director of National Intelligence, previewed a potentially difficult reauthorization path for Section 702 of the Foreign Intelligence Surveillance Act (“FISA”).  While Gabbard appears to now publicly favor reauthorization of Section 702, her need to change positions to help her confirmation raises the question of whether Republican members of Congress who also previously opposed reauthorization will switch positions or if they will continue to ask for concessions.  At the same time, Section 702 proponents may not find as staunch of an ally as they have in the past in the Director of National Intelligence.  

Section 702 governs the United States’ electronic surveillance of non-U.S. persons outside of the United States.  Originally passed as part of the FISA Amendments Act in 2008, it was reauthorized for six years in 2018, along with other FISA provisions that provide procedures for surveilling U.S. persons outside of the United States.  Section 702 was last renewed in 2024 for a period of two years, meaning that it will be up for reauthorization in 2026.  Section 702 has historically received broad, bipartisan support.  However, lawmakers on both sides of the aisle have raised concerns about Section 702, including Gabbard.  For her part, Gabbard has previously noted that surveillance conducted pursuant to Section 702 inevitably sweeps up Americans’ private communications and federal agents can later conduct warrantless searches of that data.  

Before Gabbard was nominated for the Director of National Intelligence, she voiced concerns about Section 702 and opposed its reauthorization.  For example, while serving in the House of Representatives in 2017, she introduced a bill aimed at codifying certain privacy protections for U.S. person data inadvertently collected pursuant to Section 702, stating that the 2008 FISA Amendments Act, “specifically Section 702, has led to massive government-led exploitation of personal privacy through the collection of American citizens’ emails.”  In 2018, Gabbard voted against reauthorizing Section 702.  Gabbard also joined a bipartisan group of lawmakers in introducing legislation to reform Section 702 that mirrored the bill that she introduced the year before.  Speaking on the floor of the House of Representatives, Gabbard urged her colleagues to vote for the legislation, stating, “Since 2001, the civil liberties of the American people have been trampled on under the blank check of Section 702, a program that exists to allow our government to surveil foreigners on foreign soil, but which has also allowed our government to collect, retain, and search communications of everyday Americans without a warrant, and with blatant disregard for our Fourth Amendment constitutional rights.”  

At her confirmation hearing last Thursday, Gabbard largely moderated her previous criticism of Section 702.  Although she stated that she believed that warrants should generally be required before an agency undertakes a U.S. person query of Section 702 data, she also consistently stated that Section 702 is critical to national security and that new FISA reforms have assuaged her earlier concerns. Despite Gabbard’s assurances, members of the Senate Intelligence Committee expressed concern during the hearing about her track record of opposing Section 702.  On February 4, 2025, the Committee voted 9-8 along party lines to advance Gabbard’s nomination to the Senate floor.

   The nomination of Gabbard for Director of National Intelligence, her prior opposition to Section 702, and her recent statements moderating her position, raise questions about the precise path forward on the reauthorization of Section 702, and much may depend on how strongly members of Congress adhere to their past positions.