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.
FISA and Section 702
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.”
The following catalogs various revelations by Edward Snowden, regarding the United States’ surveillance activities.
Each disclosure is assigned to one of the following categories: tools and methods, overseas U.S. government locations from which operations are undertaken, foreign officials and systems that NSA has targeted, encryption that NSA has broken, ISPs (Internet Service Providers) or platforms that NSA has penetrated or attempted to penetrate, and identities of cooperating companies and governments. Each entry includes the date the information was first published (Lawfare, 2017).
1. Tools and methods
Congress.gov. (2017). H.R.3989 - USA Liberty Act of 2017. [online] Available at: https://www.congress.gov/bill/115th-congress/house-bill/3989/text [Accessed 21 Oct. 2017].
Judiciary Committee. (2017). USA Liberty Act. [online] Available at: https://judiciary.house.gov/wp-content/uploads/2017/10/100517-USA-Liberty-Act.pdf [Accessed 21 Oct. 2017].
Lawfare. (2017). Snowden Revelations. [online] Available at: https://www.lawfareblog.com/snowden-revelations [Accessed 24 Oct. 2017].
Sharma, C. (2017). The USA Liberty Act: House Judiciary’s Proposed Reauthorization of Section 702. [online] Lawfare. Available at: https://lawfareblog.com/usa-liberty-act-house-judiciarys-proposed-reauthorization-section-702 [Accessed 24 Oct. 2017].
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