U.S. President Donald Trump on Friday, January 19, 2018 said he signed into law a bill renewing the National Security Agency’s warrantless internet surveillance program. “Just signed 702 Bill to reauthorize foreign intelligence collection,” Trump wrote on Twitter, referring to legislation passed by the U.S. Congress that extends Section 702 of the Foreign Intelligence Surveillance Act (FISA).

The law is renewed for six years and with minimal changes the National Security Agency (NSA) program, which gathers information from foreigners overseas and also collects an unknown amount of communications belonging to Americans.

Without Trump’s signature, Section 702 had been set to expire on Friday, though intelligence officials had said the surveillance program could continue to operate until April.

Under the law, the NSA is allowed to eavesdrop on vast amounts of digital communications from foreigners living outside the United States via U.S. companies like Facebook, Verizon, and Google.

But the program also incidentally scoops up Americans’ communications, including when they communicate with a foreign target living overseas, and can search those messages without a warrant.

The White House, U.S. intelligence agencies and congressional Republican leaders have said the program is indispensable to national security, vital to protecting U.S. allies and needs little or no revision.

Privacy advocates say it allows the NSA and other intelligence agencies to grab data belonging to Americans in a way that represents an affront to the U.S. Constitution.

Volz, D. (2018). Trump signs bill renewing NSA's internet surveillance program. [online] Reuters. Available at: https://www.reuters.com/article/us-usa-trump-cyber-surveillance/trump-signs-bill-renewing-nsas-internet-surveillance-program-idUSKBN1F82MK?feedType=RSS&feedName=domesticNews [Accessed 23, Jan. 2018].

Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do incidentally collect information about U.S. persons when U.S. persons communicate with the foreign targets of Section 702 surveillance.

The USA Liberty Act claims that it will “better protect Americans’ privacy” by requiring the government (e.g., NSA, FBI, etc.) to have “a legitimate national security purpose” before searching an individual’s database. Then when they do have that purpose established, they will be required to “obtain a court order based on probable cause to look at the content of communications, except when lives or safety are threatened, or a previous probable cause-based court order or warrant has been granted.” However, as long as it is relevant to an authorized investigation, the query may be done and an agent can immediately access metadata, such as phone numbers and time stamp information.

Section 702 authorizes intelligence agencies to collect the content, or substance of communications, and non-content, or metadata, for broad purposes of defense and foreign affairs both directly through their own technology and also by compelling U.S. companies to produce data. One form of collection, known as “upstream,” involves capturing packets of information directly as they cross the internet backbone through service providers like AT&T and Verizon when there is a belief such packets will include communications “to” and “from”—and under old rules “about”—an intended target. “Downstream” collection is commonly referred to as “PRISM” and involves the government requesting data from retail providers like Yahoo or Gmail.

The program’s procedural protections include certification (court-approved justifications for surveillance), targeting (methods to ensure surveillance is individual-specific based on selectors), and minimization guidelines (ex ante requirements to withhold, mask, or purge information). The Foreign Intelligence Surveillance Court (FISC) must grant annual approval of the proposed procedures.

The U.S. government has repeatedly stressed the importance of the program. Though the majority of information related to 702 is classified, Office of the Director of National Intellience (ODNI) has declassified some examples of 702 successes (Sharma, 2017).

More than 50 organizations, including the American Civil Liberties Union and the Freedom of the Press Foundation, have joined together to condemn the USA Liberty Act, a bill that reauthorizes and creates additional loopholes for Section 702 of the Foreign Intelligence Surveillance Act (FISA).

In a letter to the House Judiciary Committee, the coalition noted that one of the most obvious problems with the USA Liberty Act is that it fails to address concerns with the “backdoor search loophole,” which allows the government to “conduct warrantless searches for the information of individuals who are not targets of Section 702, including U.S. citizens and residents.”

The problem is that warrantless surveillance is — regardless of the reasons given — a violation of the Fourth Amendment guarantee against unreasonable searches. As Dr. Ron Paul explained, “There is no ‘terrorist’ exception in the Fourth Amendment. Saying a good end (capturing terrorists) justifies a bad means (mass surveillance) gives the government a blank check to violate our liberties.”