It is not too early to begin talking about Section 702, a surveillance authority that amended the Foreign Intelligence Surveillance Act, which comes up for reauthorization in late 2023. Discussion of this authority in Congress during this year’s campaign season is an ideal time to set up needed reforms. Otherwise, this surveillance authority may get a rubber stamp renewal, as it did in 2018.
Few would disagree with the need for such an authority, which allows intelligence agencies to monitor and track potential terrorists. Civil liberties advocates must help Congress, however, to understand the need to reform and modernize this law, to bring its stated intentions up to speed with the awesome capabilities of recent advances in technology. Congress must understand that even though Section 702 prohibits the targeting of American citizens, protected by the Fourth Amendment, this law nevertheless all but mandates the collection of our information.
The reason for this is that Section 702 is broadly written, targeting foreigners who possess “foreign intelligence information” – a vague term that allows for the broad collection of communications with American citizens on a host of topics. For years, the NSA has collected text messages, emails and internet metadata from direct taps into the internet. Technology today makes it only easier to seek bulk collection of communications of millions of people, American and foreign alike.
When this happens, as it inevitably does, “incidental” collections of Americans’ private information are then held in government databases for years. Many experts in surveillance law believe the FBI, CIA and other agencies use this source to access Americans’ private information at will.
In short, Section 702 has an inherent potential to provide warrantless, “backdoor” searches on Americans in violation of the U.S. Constitution. History validates this view. In October 2018, James E. Boasberg, Foreign Intelligence Surveillance Court judge, rebuked the FBI for improper use of 702 information. Over one four-day period, for example, the FBI made more than 6,800 queries using Americans’ Social Security numbers in 702 databases. The FBI also failed to keep records of specific searches likely to identify U.S. persons, despite a legal requirement to do so.
Given the history of the FBI playing fast and loose with legal definitions, and the facts behind Judge Boasberg’s rebuke, Congress should underscore that an agency must obtain a probable cause warrant to review an American’s 702 data for cases unrelated to foreign intelligence.
Congress could also strengthen the role of the Foreign Intelligence Surveillance Court to review Section 702 programs and policies, with civil liberties experts provided to help advise the court.
Finally, any American who faces charges in court based on evidence from Section 702 sources should be notified of the origin of this evidence.
These are just some of the many aspects of Section 702 that need a fuller and more public examination. This session of Congress is the perfect time for this discussion, before 2023 rolls around and Congress once again takes the easy path of extending Section 702 without any significant review or reform.
PPSA will work closely with our civil liberties peers to keep Section 702 top of mind in 2022.