Section 702 of FISA: Privacy, Security, and Reform

-- By MoneshDevireddy - 15 Dec 2024

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a problematic piece of legislation that allows the U.S. government to conduct warrantless surveillance of non-U.S. persons located outside the United States for foreign intelligence purposes. The law was enacted in 2008 as part of the FISA Amendments Act, which aimed to enhance the government’s ability to monitor foreign terrorists and other threats in the aftermath of the 9/11 attacks. Section 702 raises serious concerns about the privacy and civil liberties of Americans, whose communications may be incidentally or intentionally collected, searched, and used by intelligence agencies without adequate safeguards or oversight.

Section 702 authorizes the Attorney General and the Director of National Intelligence to jointly approve surveillance programs that target non-U.S. persons reasonably believed to be outside the United States, based on broad categories of foreign intelligence information. The government does not need to obtain a warrant or a court order for each individual target, as long as it follows certain procedures approved by the Foreign Intelligence Surveillance Court (FISC), a specialized court that reviews the government’s surveillance applications. The government can collect the phone calls, emails, text messages, and other electronic communications of the targets from U.S. companies or internet service providers, or by tapping into the internet backbone, as well as compel companies to assist in the surveillance. The National Security Agency (NSA) is the primary agency responsible for collecting and analyzing the data, but it can also share the data with other intelligence agencies, such as the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI), for further processing and use.

Incidental/About Collection

Section 702 poses a significant threat to the privacy and security of Americans for several reasons. First, the law allows the government to collect and retain the communications of Americans who are in contact with the foreign targets, without any suspicion of wrongdoing or individualized court approval. Under the unassuming name “incidental collection,” this practice has the ability to affect millions of Americans who communicate with family, friends, or colleagues overseas, or who use foreign-based platforms or services. The government can also collect the communications of Americans who are not in direct contact with the foreign targets, but whose messages contain information about them, such as their names or email addresses. This is known as “about collection,” and it can sweep in a large amount of irrelevant or sensitive data.

Backdoor Search Loophole

Second, the law enables the government to search through the data collected under Section 702 for information about Americans—without a warrant or a court order—and use such data for various purposes, including criminal investigations and prosecutions. This is known as the “backdoor search loophole,” and it can enable the government to circumvent the Fourth Amendment’s protection against unreasonable searches and seizures, and the traditional FISA’s requirement of probable cause and judicial oversight. The government can perform these searches for any foreign intelligence or evidence of a crime, regardless of the relevance or urgency of the matter, and without any reporting or auditing mechanisms. The FBI, in particular, has conducted hundreds of thousands of these searches every year, and has admitted to violating the rules governing them on numerous occasions. The government’s ability to use this law for such unconstitutional searches has disturbing implications for journalists, activists, political opponents, and racial or religious minorities, among others.

Lack of Transparency

Third, the law lacks adequate transparency and accountability measures to prevent abuse and ensure compliance with the constitutional and statutory limits. The FISC, which is supposed to oversee the government’s surveillance activities, has limited authority and resources, and operates in secret, without any adversarial or public input. The FISC has often relied on the government’s representations and assurances, and has rarely rejected or modified the government’s requests. The FISC has also faced difficulties in obtaining accurate and timely information from the government, and has discovered several instances of non-compliance, misrepresentation, and overcollection by the government. Congress has faced challenges in obtaining access to relevant information and documents from the executive branch, and has often been divided along partisan lines on the issue of surveillance reform. The public, which is supposed to be informed and engaged in the democratic process, has also been largely kept in the dark about the scope and impact of Section 702 surveillance, and has had limited opportunities to challenge the legality or constitutionality of the law in court.

The Need for Reform

Given these threats and challenges, there is a pressing need for reforming Section 702 to protect the privacy and security of Americans, while balancing the legitimate needs of the government for foreign intelligence. Potential reforms include: (1) requiring a warrant or a court order before conducting backdoor searches of Americans’ communications content, with exceptions for exigent circumstances, consent, or certain cybersecurity-related queries, and thereby closing the backdoor search loophole and restoring the Fourth Amendment’s protection against warrantless searches of Americans’ private data; (2) narrowing the scope of Section 702 surveillance by limiting the categories of foreign intelligence information that can be collected, and prohibiting the collection of communications that are not to or from a foreign target, such as “about” communications, thereby reducing the amount of irrelevant or sensitive data collected and retained by the government, and minimizing the risk of incidental collection of Americans’ communications; and (3) improving the oversight and transparency of Section 702 surveillance by strengthening the role and resources of the FISC, allowing independent and public participation in the court proceedings, requiring more reporting and auditing of the government’s compliance and use of the data, and ensuring that individuals are notified and have standing to challenge Section 702 surveillance in court. This would enhance the accountability and legitimacy of the government’s surveillance activities, and provide more opportunities for judicial review and public scrutiny.

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