Warrantless Surveillance Under Section 702 of FISA
Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities, and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.
Section 702 is set to expire at the end of 2017. The Trump administration wants Congress to make the law permanent. We strongly oppose those efforts and call on Congress to significantly reform the law, or allow it to sunset.
ACLU Legal Challenges to Section 702
- Wikimedia Foundation v. NSA
- Amnesty International USA v. Clapper
- United States v. Muhtorov
- United States v. Mohamud (amicus curiae)
- United States v. Hasbajrami (amicus curiae)
1.Section 702 allows warrantless surveillance of people inside and outside the U.S.
Though Section 702 is justified as a counterterrorism tool, in reality it permits surveillance far beyond what is needed to protect national security. It allows the government to target foreigners abroad if it believes they possess “foreign intelligence information” — a term so broadly defined that it can include ordinary information about foreign affairs that has nothing to do with national security. This means that targets of surveillance could include human rights defenders, journalists, whistleblowers, or business owners. The government collects the personal information of these individuals — including any communications they may have with people in the U.S. — and stores it in databases for years, and in some cases, indefinitely.
2.Despite the fact that the law is not supposed to be used to target Americans, the government has been doing just that for years.
Once the government collects vast amounts of information — including emails, text messages and other communications — under Section 702, that content is stored in databases for years at a time. FBI, CIA, and NSA officials routinely search through this vast trove of data for information specifically about Americans, even though these communications were all collected without a warrant. Information found through these “backdoor searches” can be used to prosecute Americans for crimes, even if they are not related to national security.
3.Information collected under Section 702 could be used against you, and you likely wouldn’t know.
The government can use information collected under Section 702 in a wide variety of contexts, from criminal cases to immigration proceedings. Despite the government being legally required to provide notice to defendants when information collected under Section 702 is to be used against them, in only a handful of cases has this notification ever been provided.
4.Section 702 is used to examine communications flowing in and out of the U.S. in bulk.
Through its “Upstream” program, the NSA has tapped directly into the internet backbone — the core infrastructure that carries emails, text messages, and internet data between Americans and the rest of the world. The NSA uses devices it has installed on the internet backbone to continuously scan international internet traffic in bulk, looking for communications associated with tens of thousands of “targets.” This is an unprecedented form of real-time, suspicionless surveillance. While the NSA curtailed one controversial element of its Upstream collection in April 2017 after repeated violations of court-ordered limits, it has indicated that it hopes to bring that spying back in the future.
5.Surveillance programs have been abused by the intelligence agencies.
The NSA admitted in 2013 that analysts, in a number of instances, improperly used surveillance databases to monitor their exes in a practice known by some as LOVEINT. Additionally, a recent opinion from the Foreign Intelligence Surveillance Courtregarding Section 702 surveillance, revealed a significant number of other violations that raised significant Fourth Amendment concerns, and were not properly disclosed to the court. These violations were so significant that the NSA even ended some of its surveillance practices — though it could restart them at any time.
6.There is little that prevents Section 702 from being used against critics, activists, religious minorities, or communities of color.
Our government has a history of using surveillance to target activists, government critics, and minority communities. In the past, prominent civil rights leaders like Martin Luther King, Jr. and Cesar Chavez were labeled national security threats and targeted for surveillance by the FBI. More recently, there have been reports that the NSA targeted prominent Muslim leaders who were never charged with a crime, and used the derogatory slur “Mohammed Raghead” as a fake name in internal documents designed to instruct personnel on how to properly format FISA related memos. As written, Section 702 contains virtually no protections to prevent these types of surveillance abuse. The FBI and other federal agencies routinely search through the Section 702 database without a warrant in cases unrelated to national security. As a result, the authority can be used to support government fishing expeditions selectively targeted at certain communities without cause.
7.The program is not subject to any meaningful judicial oversight.
The Foreign Intelligence Surveillance Court, which was created decades ago to remedy a sordid record of government spying abuses, has no role in reviewing the government’s individual targets for Section 702 surveillance. Instead, the court only reviews the broad procedures that the government uses to target foreigners abroad and its efforts to “minimize” the information about Americans that is collected. The process would be akin to a judge signing off on thousands of warrants at a time — after only reviewing the process by which police departments decide who to search.
8.The government has deliberately chosen to hide the impact of the program from the public.
Despite repeated urging from Congress, the ACLU, and others, the government has refused to release even an estimate of the number of Americans whose communications are swept up under Section 702 surveillance. Likewise, the FBI has not released information about how often they search the Section 702 databases for information about Americans.
9.Section 702 surveillance chills freedom of speech and association.
The broad, warrantless collection of data under Section 702 creates an understandable fear that private messages may be read or used by the government. This fear creates a chilling effect on anyone using the internet to communicate, and has a particularly significant impact on the sensitive work done by journalists and lawyers, who have reported changing what they say and whom they communicate with in light of U.S. surveillance practices.
How Congress Should Reform Section 702
Congress has an opportunity to bring Section 702 into closer alignment with constitutional protections and with Americans’ expectation of privacy. Reforms to the law should:
1.Close the “backdoor search loophole” and narrowing the use of Section 702 information.
This would prohibit government agencies from searching through Section 702 data for information about Americans and other individuals in the U.S. without a probable cause warrant. In addition, it would prevent agencies from using Section 702 for purposes unrelated to foreign intelligence.
2.Narrow the overbroad scope of Section 702.
Section 702 should be narrowed to prevent the government from targeting people who have no connection to terrorism, espionage, or nuclear proliferation.
3.Prohibit the mass searching of Americans’ emails and other online communications.
Reforms should end the Upstream program, in which the government has copied and searched the contents of millions of Americans’ communications.
4.Improve oversight and transparency.
The Foreign Intelligence Surveillance Court should be empowered to conduct meaningful review of government surveillance programs, requiring the government to report statistics on its surveillance activities, and strengthening the powers of the FISA court’s amicus.
5.Limit how long the government can retain information collected under Section 702 and how the NSA shares that information with other government agencies.
The government should be required to purge irrelevant information in a timely manner, and should have strong restrictions on sharing information with federal agencies, states and localities, and foreign governments.
6.Ensure that individuals are able to challenge Section 702 surveillance in court.
Reforms should strengthen the requirement that the government notify individuals when Section 702 information is used against them in court. Reforms should also rein in excessive uses of the state secrets privilege. These steps would help individuals seek accountability for government surveillance abuses in our courts.