The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to govern the use of electronic surveillance and physical searches in foreign intelligence investigations. Section 702 of the FISA Amendments Act of 2008 (FAA) permits the government to conduct targeted surveillance of non-U.S. persons located outside the United States for foreign intelligence purposes. Here is a technical overview of Section 702 and its constitutional challenges in federal court.
What is a Section 702 search?
A Section 702 search is a type of surveillance authorized by the FISA Amendments Act of 2008. It permits the government to target non-U.S. persons located outside the United States for surveillance without a warrant. The surveillance may be conducted if the government has a reasonable belief that the target is a foreign power or an agent of a foreign power, and that the surveillance is necessary to acquire foreign intelligence information.
Under Section 702, the government can target electronic communications such as emails, chats, and social media posts. It allows the government to collect information that is “about” a foreign intelligence target, even if the communications are not to or from the target. The collected information may be used for foreign intelligence purposes and may be shared with other government agencies.
How would someone know that their account was subject to Section 702 and related activities?
If a person’s account was involved in a Section 702 search, they may not necessarily know about it. Section 702 authorizes the government to conduct surveillance “about” non-U.S. persons located outside the United States (and therefore may include information from the accounts of those in the US and/or US citizens), and the government is not required to notify individuals if their communications have been collected.
However, if the government obtains information from a Section 702 search that is used in a criminal prosecution, the individual may become aware of the search during the discovery process. The government is required to disclose any information obtained through surveillance to the defense in criminal cases, including information obtained through Section 702 searches.
In addition, some internet service providers and technology companies may be required to disclose if they have received a national security letter or a warrant from the government requesting information about a specific user. These letters and warrants are often used to obtain information under Section 702, among other authorities.
However, it is important to note that companies may be prohibited from disclosing the existence of such letters and warrants due to national security concerns. Additionally, even if an individual learns that their communications have been collected under Section 702, they may not be able to challenge the legality of the surveillance due to the secrecy surrounding national security investigations.
In summary, it can be difficult to know if your account was involved in a Section 702 search, and the government is not required to notify individuals if their communications have been collected. However, if information obtained through Section 702 is used in a criminal prosecution, the individual may become aware of the search during the discovery process.
Who can request what type of information under Section 702?
Section 702 authorizes the National Security Agency (NSA) to collect communications from foreign targets located outside the United States. The NSA can then share this information with other intelligence agencies, including the CIA and the FBI. The collected information can be used to identify and prevent terrorist threats, espionage, and other national security threats.
Constitutional challenges mounted in federal court and its results
Several constitutional challenges have been mounted in federal court against Section 702. One of the most significant challenges is whether the surveillance authorized by Section 702 violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.
In 2013, former NSA contractor Edward Snowden leaked classified documents that revealed the scope of the NSA’s surveillance programs, including Section 702 surveillance. This led to a series of lawsuits challenging the constitutionality of Section 702. In 2018, the Supreme Court ruled in Carpenter v. United States that the warrantless collection of cell site location information violated the Fourth Amendment.
In 2019, the Foreign Intelligence Surveillance Court (FISC) ruled that the FBI had violated the Fourth Amendment in its use of Section 702 surveillance. The FISC found that the FBI had conducted warrantless searches of the information collected under Section 702 in a way that violated the Fourth Amendment.
In response to these challenges, Congress has passed legislation aimed at reforming Section 702. The USA FREEDOM Act of 2015, for example, requires the government to obtain a warrant before searching the contents of communications collected under Section 702 in criminal investigations.
How many searches happen
According to an article on Bloomberg:
“There’s been a decline in the number of searches overall, from about 3.4 million in 2021 to about 204,000 in 2022, according to an FBI official who asked to remain anonymous because the new statistics aren’t yet official. That was largely due to reforms the FBI has made since 2021, including requiring analysts to “opt in” to search the Section 702 database, the official said. Previously, the database was included in searches by default even when analysts didn’t intend to access it.”
Conclusion
In conclusion, Section 702 of the FISA Amendments Act of 2008 permits the government to conduct targeted surveillance of non-U.S. persons located outside the United States for foreign intelligence purposes. While Section 702 has been subject to several constitutional challenges, the government has argued that it is necessary to protect national security. The legal and constitutional issues surrounding Section 702 remain a topic of ongoing debate and reform.
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