Loyola University of Chicago School of Law, JD 2019
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the United States government to obtain access to the communications (e.g. emails) of non-U.S. citizens without a warrant. The rationale behind the law is its potential for use in gathering intelligence on potential terrorists and potential terrorist activity. The law has become controversial because intelligence on U.S. citizens has incidentally occurred as well, as emails and phone calls from U.S. citizens have been contained in intelligence-storing databases. As the law expires at the end of 2017, Congress is considering changing the ways intelligence is collected pursuant to the collection procedures stipulated under the law.
What type of data is being collected and how is this information being collected?
The Office of the Director of National Intelligence’s website defines the type of data collected under Section 702 as telecommunications data transmitted via electronic communication service providers. The United States government cannot unilaterally obtain information from the servers of electronic communications providers; any request must be approved by an order from the FISA court. The government must also inform the service providers themselves of such collections. These actions are taken based upon a written directive from the Attorney General and the Director of National Intelligence. Moreover, collection activities are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress.
Under the statute, there are limits on who is targeted for intelligence surveillance and for what reasons. According to Section 702, there needs to be an “appropriate, and documented foreign intelligence purpose” for the government to target a foreign individual and that individual must be reasonably believed to be outside the United States. Furthermore, the statute cannot be used to target someone that is outside of the United States, if the purpose is to collect information about someone inside the United States. Section 702 also prohibits the intentional targeting of a United States citizen outside of the United States.
What are the compliance implications?
Section 702 of the Foreign Intelligence Surveillance Act and other United States surveillance programs came under intense scrutiny for targeting U.S. citizens during President Obama’s administration, particularly when information regarding the NSA’s surveillance program was divulged to the public by Edward Snowden. As a response to the outcry, President Obama and his administration provided enhanced transparency about the government’s key intelligence programs. In a May 2013 address at the National Defense University, President Obama clarified that the United States government needed to review its surveillance programs more thoroughly in order to prevent abuse of the law.
More recently, there were two meetings held by the intelligence community for House members at the National Security Agency the week of September 10th. The meetings were conducted to inform lawmakers of how intelligence collection worked under Section 702 of FISA. Section 702 must be reauthorized every year and President Trump has affirmed his goal to reauthorize the law without changes; his administration insists that the law is safe from governmental abuse and overreach. Many are calling for reform, however, to limit the intelligence collection procedures outlined in the law. Particularly, the House Judiciary Committee argues that the law should require FBI agents to obtain a warrant before searching intercepted communications. In addition, the committee calls for a permanent ban on intercepting messages that mention the names of foreign individuals if that individual did not send or receive the message.
New targeting and minimizing procedures, such as those asserted by the judiciary committee, are only some of the steps the intelligence community and lawmakers are taking to ensure that the government’s intelligence collection procedures are conducted in a manner that is consistent with the Fourth Amendment of the United States Constitution. The committee has urged its commitment to protecting the liberty of Americans to be free from unwarranted searches and from the collection of their communications, without sufficient legal process. As re-authorization of the Act looms on the horizon, the future of effective intelligence surveillance laws like Section 702 hangs in the balance.