Foreign Intelligence Surveillance (FISA Section 702, Executive Order 12333, and Section 215 of the Patriot Act): A Resource Page

This collection of resources focuses on three legal authorities that provide insufficient protection for the privacy rights of Americans and law-abiding citizens of other countries.

September 28, 2017
The term “foreign intelligence” conjures images of spies collecting information about our adversaries in other countries. But Americans can get caught up in foreign intelligence investigations, too – whether they are targets themselves, communicating with targets, or simply sending e-mails that get stored or routed overseas.
 
Since the 1970s, there have been laws in place to safeguard the rights of Americans in foreign intelligence investigations. But some of these laws have been significantly weakened since 9/11, while others were too weak to begin with. The inadequacy of civil liberties protections in the law creates enormous potential for abuse without any corresponding security benefit.
 
This collection of resources focuses on three legal authorities that provide insufficient protection for the privacy rights of Americans and law-abiding citizens of other countries.
 
  • Section 702 of the Foreign Intelligence Surveillance Act (FISA): This law was passed in 2008 to legalize President George W. Bush’s warrantless wiretapping program. It removed the requirement, in place since 1978, that the government obtain a warrant from the FISA Court when seeking to wiretap communications between a foreign target and an American from inside the U.S. It also greatly broadened the scope of permissible foreign targets to include private citizens not suspected of any wrongdoing. The FISA Court must approve the general procedures for Section 702 surveillance but does not approve individual targets.

Although the target must be a foreigner overseas, Section 702 surveillance is believed to result in the “incidental” collection of millions of Americans’ communications. Agencies make broad use of these communications, notwithstanding the fact that Section 702 requires them to “minimize” the retention and sharing of Americans’ information. For instance, the FBI may comb through Section 702 data for information to use against Americans in ordinary criminal cases.

  • Executive Order 12333: This order, issued by President Reagan in 1981, governs electronic surveillance that the NSA conducts overseas. Unlike NSA surveillance conducted domestically (which is regulated under Section 702), overseas surveillance is not subject to any judicial oversight, and congressional oversight is limited.

While Executive Order 12333 prohibits the targeting of individual Americans, it allows “bulk collection,” resulting in the acquisition of massive amounts of Americans’ communications and other data. Under one program, for instance, the NSA collects and stores for 30 days all of the phone calls coming into and out of certain countries, including the Bahamas.

  • Section 215 of the Patriot Act: Passed in the immediate aftermath of 9/11, Section 215 allowed the NSA to acquire “any tangible thing” from third parties (such as telephone companies) if it could persuade the FISA Court that the item was “relevant” to a foreign intelligence investigation. In 2013, Edward Snowden revealed that the NSA was using this authority to collect Americans’ telephone records in bulk. The FISA Court approved the collection, interpreting Section 215 to permit the collection of vast quantities of irrelevant records so long as there were relevant records buried within them.

In 2015, Congress enacted the USA Freedom Act to end the NSA’s bulk collection program. In its place, Congress created a new program under which the NSA can obtain the telephone records of suspected terrorists and anyone in contact with them. 

 

Section 702

Reports:

What Went Wrong with the FISA Court (Elizabeth Goitein & Faiza Patel, 2015)

Analysis:

Reforming Section 702: We Can Protect Americans’ Privacy and Protect Against Foreign Threats (August 2017)

Letter to Director of National Intelligence Dan Coats (June 13, 2017)

Letter to Senate Regarding FISA Section 702 Reauthorization (September 7, 2017)

How FISA Surveillance Affects Americans: In Search of Answers (Elizabeth Goitein, January 13, 2016)

Letter to the Director of National Intelligence (January 13, 2016)

Letter from Office of the Director of National Intelligence (December 23, 2015)

Brennan Center Urges End of Surveillance Under Section 702 (April 11, 2014)

Opinion:

How to Spy on a President (Elizabeth Goitein; Boston Review; March 9, 2017)

The Same Republicans Who Pushed for Invasive Surveillance Are Complaining About It Now (Elizabeth Goitein; Slate; February 16, 2017)

Holding Sessions Accountable on Civil Liberties (Rachel Levinson-Waldman; January 9, 2017)

The Ninth Circuit’s Constitutional Detour in Mohamud (Elizabeth Goitein; Just Security; December 8, 2016)

Trump Will Have Wider Spying Powers than Anything J. Edgar Hoover Ever Imagined (Elizabeth Goitein; Los Angeles Times; December 7, 2016)

The 702 Reform Debate Is Just Heating Up (Faiza Patel; Just Security; May 16, 2016)

The FBI’s Warrantless Surveillance Back Door Just Opened a Little Wider (Elizabeth Goitein; Just Security; April 21, 2016)

How FISA Surveillance Affects Americans: In Search of Answers (Elizabeth Goitein; January 13, 2016)

Bulk Collection Under Section 215 Has Ended… What’s Next? (Faiza Patel; Just Security; November 30, 2015)

Safe Harbor and Reforming Section 702 (Faiza Patel; Just Security; October 22, 2015)

The NSA’s Backdoor Search Loophole (Elizabeth Goitein; Boston Review; November 14, 2013)

Video & Radio Interviews:

Liza Goitein on ReasonTV: End Warrantless Deep State Spying: Don’t Renew 702 (September 11, 2017)

Steptoe Cyberlaw Podcast: Interview with Rebecca Richards and Elizabeth Goitein (September 11, 2017)

WJLA: ‘Full Measure’: Surveillance State (July 2, 2017)

Liza Goitein on C-SPAN: FISA Reauthorization (June 27, 2017)

Elizabeth Goitein on CSPAN2: Future of FISA (June 5, 2017)

Liza Goitein on Tech Policy Podcast: NSA Checks Itself? (May 4, 2017)

Liza Goitein on All Things Considered: What is Section 702? (April 24, 2017)

Liza Goitein on All Things Considered: Unmasking 101 (April 24, 2017)

Liza Goitein on WNYC: Section 702 (March 27, 2017)

Elizabeth Goitein on Fox Business: Privacy and Security (March 23, 2017)

Interview: Michael German with Edward Snowden at Computers Freedom Privacy 2015 (October 12, 2015)

Podcast: What Went Wrong With the FISA Court? (April 2, 2015)

Interview: Michael German with Frederick A.O. Schwarz, Jr. (August 19, 2014)

Statements, Press Releases, & Testimony:

Testimony on “The FISA Amendments Act: Reauthorizing America’s Vital National Security Authority and Protecting Privacy and Civil Liberties” before the Senate Committee on the Judiciary (Elizabeth Goitein, June 27, 2017)

Testimony on Section 702 Reform before the House Committee on the Judiciary (Elizabeth Goitein, March 1, 2017)

Testimony on “Oversight and Reauthorization of the FISA Amendments Act” Before the Senate Committee on the Judiciary (Elizabeth Goitein, May 10, 2016)

U.S. House Judiciary Committee Members Call on Director of National Intelligence to Disclose Surveillance Data (April 22, 2016)

Brennan Center, Civil Liberties Groups Press Director of National Intelligence for Answers on Section 702 Surveillance (January 13, 2016)

How Many Americans are Swept Up in NSA’s Foreign Intelligence Surveillance? (October 29, 2015)

 

Executive Order 12333:

Reports:

Overseas Surveillance in an Interconnected World (Amos Toh, Faiza Patel, & Elizabeth Goitein, 2016)

Analysis:

Brennan Center Submits Comments on PCLOB’s 12333 Plan (June 17, 2015)

Letter to the Director of National Intelligence and the Director of the National Security Agency (April 7, 2016)

Opinion:

Obama’s Surveillance Reform Promises, One Year Later (Elizabeth Goitein; The Boston Review; April 2, 2015)

Video:

The Brennan Center for Justice & Just Security present: Overseas Surveillance in an Interconnected World: Understanding Executive Order 12333 and its Reach (March 17, 2016)

Statements & Press Releases:

Groups Ask the NSA to Halt Plans to Weaken Privacy Protections for Americans (April 7, 2016)

New Report: NSA’s Overseas Surveillance Activities Pose Major Privacy Risks to Americans, Have Little Oversight (March 16, 2016)

 

Section 215 and Bulk Collection:

Analysis:

Are They Allowed to Do That? A Breakdown of Selected Government Surveillance Programs (July 15, 2013)

Opinion:

Bulk Collection Under Section 215 Has Ended…What’s Next? (Faiza Patel; Just Security; November 30, 2015)

The Legal Legacy of the NSA’s Section 215 Bulk Collection Program (Michael Price; Just Security; November 16, 2015)

What Americans Actually Do When the Government Is Watching (Brynne O’Neal; Huffington Post; July 20, 2015)

When Will Surveillance Reform Stop Being Just ‘Cool’? (Faiza Patel; Al Jazeera America; June 25, 2015)

Who Really Wins from NSA Reform? (Elizabeth Goitein; MSNBC; June 5, 2015)

Our Privacy and Liberty Still At Risk, Even If Leahy NSA Bill Passes (Elizabeth Goitein; The American Prospect; August 7, 2014)

Post-9/11 Overreach of Secret Federal Court Must End (Faiza Patel; Al Jazeera America; July 18, 2014)

On Anniversary of Snowden's NSA Disclosure, A Shocking Realization (Elizabeth Goitein; Christian Science Monitor; June 5, 2014)

A Failure to Protect Our Rights (Faiza Patel; Al Jazeera America; March 17, 2014)

Third-Party Metadata Idea Is Fourth-Rate (Elizabeth Goitein; The Wall Street Journal; March 10, 2014)

The Real State of the Union: Surveillance and Privacy (Elizabeth Goitein; Al Jazeera America; January 28, 2014)

Judge’s Ruling Could Jeopardize NSA Surveillance (Andrew Cohen; The Atlantic; December 17, 2013)

The NSA Owes Us Answers (Rachel Levinson-Waldman, MSNBC, October 27, 2013)

What They're Not Telling Us About Telephone Records Collections (Rachel Levinson-Waldman, National Law Journal, August 26, 2013)

NSA Data Collection: A Legal Dance (Rachel Levinson-Waldman, Balkinization, June 7, 2013)

The Spying on Americans Never Ended (Elizabeth Goitein, The Wall Street Journal, June 6, 2013)

Video:

Arise TV: Mike German Discusses Surveillance Reforms (February 10, 2014)

NBC: Elizabeth Goitein on Surveillance Reforms (January 17, 2014)

BronxNet: Michael Price on NSA Data Collection (January 14, 2014)

MSNBC: Elizabeth Goitein on the NSA (December 21, 2013)

Bloomberg TV: Elizabeth Goitein on New NSA Guidelines (December 18, 2013)

EVENT: Public Voices Lecture: Surveillance in the U.S. (December 5, 2013)

CCTV: Goitein on NSA Spying on Foreign Leaders (November 3, 2013)

Globo TV: Faiza Patel on NSA Spying (October 31, 2013)

HuffPost: Goitein on NSA Spying on Foreign Leaders (October 30, 2013)

Al Jazeera: Rachel Levinson-Waldman on NSA Data (October 20, 2013)

HuffPost Live: Faiza Patel on Internet Security (September 6, 2013)

MSNBC: Elizabeth Goitein on Obama and Surveillance (August 9, 2013)

Current TV: Faiza Patel on ACLU's Case Against NSA (June 12, 2013)

Statements & Press Releases:

Congress Passes NSA Reform Bill (June 2, 2015)

NSA Reform Bill Aims to End “Bulk Collection” of Americans’ Records, But Falls Short on Other Needed Reforms (April 28, 2015)