National Security Law Today · National Security Law Today

Revisiting FISA Section 702 Debate with Josh Geltzer and Glenn Gerstell

September 17, 2025·44 min·3 clips

59% of President's Daily Brief articles in 2022 contained Section 702 intelligence from NSA.

1. National Security Law Today, the podcast of the ABA Standing Committee on Law and National Security, presents a two-part discussion on FISA Section 702 with Josh Geltzer and Glenn Gerstell ahead of the December reauthorization deadline. 2. Josh Geltzer serves as Deputy Assistant to the President and Deputy Homeland Security Advisor to President Biden; Glenn Gerstell is former General Counsel of the National Security Agency. 3. The episode asks whether Congress should reauthorize Section 702 without major restrictions, and what the consequences of a sunset or a warrant requirement would be for intelligence operations. 4. Geltzer explains that Section 702 authorizes the executive branch, under FISA Court supervision, to obtain communications of non-U.S. persons located abroad who use American communications services, with an explicit statutory prohibition on reverse targeting of U.S. persons. 5. He distinguishes 702 from Executive Order 12333, noting that 702 occupies a middle position — targets are foreign and overseas like 12333 collection, but they use U.S. communications infrastructure, which is why a statutory framework was created in 2008. 6. Geltzer describes four agencies with access to raw 702 data — NSA, CIA, the National Counterterrorism Center, and the FBI — with FBI receiving less than 4% of the total take, limited to information tied to predicated investigations. 7. He explains that a 'predicated investigation' under the FBI's Director's Investigative and Operations Guidance cannot be opened solely on First Amendment-protected activity, providing a baseline legal threshold for any query. 8. Geltzer cites the 9/11 Commission and the Webster Commission report on Fort Hood as the foundational arguments for not erecting walls between lawfully collected intelligence, framing U.S. person query capability as the lesson learned from those tragedies. 9. He discloses that FBI reforms introduced in 2021 — shifting from opt-out to opt-in for U.S. person queries — produced a 93% reduction in the number of such queries while simultaneously improving the compliance rate. 10. The President's Intelligence Advisory Board, which has operated since the Eisenhower administration, concluded in its 2023 report that a 702 sunset would be 'the greatest self-inflicted intelligence failure of a generation' and that U.S. person query capability is essential to the program's core mission. 11. Geltzer states that 59% of articles in the President's Daily Brief in calendar year 2022 contained Section 702 intelligence reported by the NSA, illustrating the authority's scale in daily executive decision-making. 12. He lists declassified examples of 702 value: disruption of planned terrorist attacks at home and abroad, the operation that killed Ayman al-Zawahiri, disruption of foreign spy recruitment in the United States, and identification of strategic malign investment by foreign actors. 13. Gerstell contextualizes 702 within the 45-year history of FISA, noting the statute was overhauled in 2008 because by the 2000s most international communications had shifted from satellite to subsea and terrestrial cables, rendering the original FISA framework obsolete. 14. He argues that 702's effectiveness is a direct product of the dominance of American communications platforms: ISIS terrorists, Russian agents, Chinese spies, and fentanyl traffickers all communicate via WhatsApp, Google, and YouTube. 15. Gerstell states there is no legal substitute for 702 if it lapses — EO 12333 covers overseas collection but cannot compel American providers, and law enforcement criminal warrants serve a different legal purpose entirely. 16. On the congressional landscape, Gerstell describes two competing Senate tracks: the Wyden bill, which would restrict or eliminate U.S. person queries except in narrow circumstances and also addresses data broker purchases and cell-site simulators; and the Warner-Rubio Intelligence Committee bill, which reauthorizes 702 with added FBI restrictions and FISA Court transparency improvements. 17. On the constitutional warrant question, Gerstell notes the Foreign Intelligence Surveillance Court has ruled on at least three occasions — in 2015, 2018, and 2023 — that no warrant is constitutionally required to query already-lawfully-collected 702 data, and the only contrary signal is a Second Circuit opinion that addressed the question in dicta rather than as a direct holding. 18. The episode is structured as two sequential one-on-one interviews, both with a legal-practitioner register and a measured, policy-briefing tone rather than a debate format. 19. National security lawyers, intelligence professionals, congressional staffers, and policy students tracking FISA reauthorization will find this episode substantive and practically grounded. 20. Listeners seeking a partisan take, a debate format, or coverage of surveillance controversies beyond 702's reauthorization scope may find the episode narrowly focused.

As heard by us

A clear, policy-level look at why Section 702 remains central to surveillance law and reauthorization debate.

Section 702 can sound abstract quickly, but the piece keeps pulling it back to the basic institutional questions: what the authority does, why it keeps coming back for review, and what could be lost if it were narrowed too far.

Read the full review in PlayNext →

Why you'd press play

You want the clearest case for why Section 702 still matters.

Read the full recommendation in PlayNext →

Listen to the show on

Apple Podcasts Spotify

Play clips from this episode More from National Security Law Today