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The 702 Reform Debate Is Just Heating Up

With the sunset of Section 702 approaching, debates about its authority and proper use are underway.

May 16, 2016

The 702 Reform Debate Is Just Heating Up” by Faiza Patel, originally published on Just Security, on May 16, 2016.

Back in 2012, the National Security Agency’s broad authorities to collect information under Section 702 of the FISA Amendments Act were re-authorized with little discussion. With the law set to sunset again at the end of 2017, Congress has already held two hearings: In February, the House Judiciary Committee held a closed hearing, which was followed last week by a public hearing by its Senate counterpart. Public concern generated by Snowden’s disclosures about how the NSA uses Section 702 no doubt has much to do with the newfound congressional interest in surveillance authorities. So too, do developments in Europe, where courts and regulators have called into question the free exchange of information with the US because of the broad scope of Section 702.

Last week’s hearing exposed key differences between those who believe that Section 702 should be narrowed (as argued by my Brennan Center colleague Liza Goitein in her testimony at last week’s hearing) and those who believe that Section 702 should be reauthorized in essentially its current form. The law is also being challenged, both in civil litigation and in a handful of criminal cases. Several intertwined issues, set out below, will shape the debate about Section 702 going forward and have the potential to dramatically alter the Fourth Amendment landscape. 

Incidental on Purpose?

Surveillance inevitably involves some “incidental” collection. When the FBI wiretapped the phones of mafia bosses, it picked up conversations with family and friends who had nothing to do with criminal activity. The interference with their constitutional rights was protected by the existence of a warrant for the target and strict procedures to minimize the collection of information about non-targets.

The FISA Court has had no problem extending this model to Section 702 data, even though it is collected without the original protection of a warrant and considerably more lax minimization procedures. And it was upheld by two district courts (here and here) in “as applied” challenges to the law. But Congress (and likely eventually the Supreme Court) must weigh facts suggesting that “incidental” collection is not so incidental after all.

First, while there is no publicly available information about the overall scale of Section 702 surveillance, it’s likely that the scope of incidental collection is significant. As explained in the Brennan Center’s FISA Court report:

A declassified 2011 opinion of the FISA Court notes that 250 million internet communications were acquired the previous year under Section 702. If only ten percent of these communications involved U.S. persons, that would still add up to the collection of 25 million internet communications involving Americans for a single year. This number would not include wholly domestic communications swept up in the net, which happens tens of thousands of times a year, according to the same decision.

Second, legislative history suggests that the point of Section 702 was to allow the NSA to gain warrantless access to Americans’ international communications. And third, the NSA, as well as the FBI and the CIA, all have relatively free rein to query data collected under Section 702 in order to retrieve and analyze Americans’ communications. Indeed, it has recently come to light that FBI agents can trawl these databases to initiate investigationsin addition to looking for foreign intelligence information or evidence of a crime, further undercutting the argument that Section 702 is solely a foreign-oriented scheme rather than an avenue for conducting warrantless domestic security surveillance.

Scanning or Fourth Amendment Seizure?

The NSA’s Section 702 Upstream program scans and copies almost all Internet traffic flowing through the United States and searches it for key terms, called “selectors,” that the agency has deemed to be associated with foreign targets. Despite some attempts to filter out domestic communications, the stream of Internet traffic scanned by the agency contains Americans’ communications in significant quantities. Does the brief (claimed to be in the seconds) copying of Americans’ communications constitute a search or seizure under the Fourth Amendment?

Last year, in ACLU v. Clapper, the Second Circuit, in the course of declaring the NSA’s Section 215 metadata program illegal, rejected the government’s argument that plaintiffs did not incur an injury allowing them to sue because they could not show that the metadata associated with their telephone calls had actually been analyzed, rather than merely collected. The court understood the collection as a Fourth Amendment seizure, finding that “[i]f the collection is unlawful, then ‘appellants have suffered a concrete and particularized injury,’ even without a subsequent review by human actors.” As Jen Daskal explained at the time, the court recognized that “we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.” Also important for purposes of NSA surveillance, the court concluded that the computer review of data to identify records that match a search term constitutes a cognizable injury that confers standing.

Although the Second Circuit’s decision is related to standing, it likely reflects the court’s position on the substance of the constitutional issue. As I have noted previously, “in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest.”

The program at issue in ACLU v. Clapper involved not just copying information but also holding on to it. Upstream collection under Section 702, it has been argued, is a brief scan and that only data that is to, from, or about a selector associated with a foreign target is actually held by the NSA for further analysis. I’m not convinced that the brevity of the search should change the analysis. Scanning every American’s home for illegal drugs would certainly implicate the Fourth Amendment, even if done by a machine and for but a few seconds.

Foreign Intelligence

The Supreme Court has never found a “foreign intelligence exception” to the Fourth Amendment’s warrant requirement, although the FISA Court has held that such an exception exists and has construed it broadly. The logic of the Court’s holding in the Keithcase, which outlawed warrantless domestic security surveillance, would apply also to foreign intelligence. Even if there is a foreign intelligence exception, there remain questions about whether it is as expansive as suggested by the FISA Court. Federal courts of appeal, which relied on the exception in pre-FISA cases, imposed critical limitations on its scope, which would be the undoing of Section 702 as we know it. In particular, the exception applied only where the target was a foreign power or agent thereof, where acquiring foreign intelligence was the government’s “primary purpose” and subject to close judicial review after the fact (see here for detailed discussion of these issues).

The foreign intelligence exception is, of course, not the end of the constitutional analysis; even if the Fourth Amendment’s warrant requirement doesn’t apply, the requirement of reasonableness remains. The FISA Court has found the Section 702 scheme to be “reasonable” under the Fourth Amendment, relying heavily on procedures that are meant to minimize the “incidental” collection of Americans’ information. But various analyses of these procedures, including one conducted by the District Court of Colorado in upholding the reasonableness of Section 702 as applied to a particular criminal defendant, show they are “riddled with loopholes.”

Perhaps the biggest such loophole, discussed above, are permissive rules allowing the FBI, as well as the NSA and the CIA, to conduct so-called “backdoor searches” of 702 databases looking for information about Americans. While these searches have thus far been considered in the context of the constitutionality of the Section 702 scheme as a whole, they present a distinct and serious threat to Americans’ privacy that should not be ignored.

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This is but an incomplete list of the issues that bedevil Section 702. Others include: the adequacy of the new amicus provisions for the FISA Court; whether the limited role played by the FISA Court in reviewing Section 702 programs violates Article III of the constitution; options for narrowing the purposes for which Section 702 surveillance is permitted, especially the “foreign affairs” purpose; European concerns about the lack of avenues for their citizens to challenge surveillance; and the less-explored matter of information sharing between the NSA and foreign intelligence services.

If Snowden’s disclosures have accomplished anything, it is triggering a national (and international) debate about the broad authorities granted to the intelligence community under Section 702. This long-overdue examination is critical to ensuring that new forms of surveillance are deployed consistent with fundamental rights. And it’s only just started…