Section 702 of the Foreign Intelligence Surveillance Act is an important intelligence tool that will expire on December 31, 2017, unless Congress reauthorizes it.
Here’s what it is, and how it works.
First, a bit of background:
The Foreign Intelligence Surveillance Act of 1978 requires the government to get a court order to intercept the electronic messages of a suspected spy or terrorist on U.S. soil. By contrast, overseas spying took place with no court oversight. That made sense for 20th century technology, because international communications rarely transited the United States. The internet made things far more complicated: now, foreigners’ communications often travel through the United States, or are stored on servers here.
That produced an anomaly: FISA was forcing the government to apply Fourth Amendment safeguards when a foreign terrorist or spy’s internet messages passed through the U.S.—even though non-Americans overseas do not have Fourth Amendment rights. This overtaxed the Justice Department and made counterterrorism more difficult. To remedy this, Congress passed the FISA Amendments Act of 2008, which included Section 702. Section 702 creates a middle ground between U.S.-based surveillance under FISA and overseas surveillance by the NSA.
“Traditional” FISA surveillance:
- Targets are agents of a foreign power in the United States
- Collection happens in the United States
- Government must get individualized court orders based on probable cause
- Targets are overseas
- Collection takes place overseas
- No judicial oversight; controlled by the President and regulated by Executive Order
- Targets are non-U.S. persons overseas – not protected by the Fourth Amendment
- Collection happens in the United States
- Annual judicial approval of the program, but not of each target
- 702 can only be used for specific, court-approved foreign intelligence purposes, including counterterrorism.
Section 702 can only be used to target non-U.S. persons overseas. People in the United States can’t be targeted under Section 702. U.S. persons overseas can’t be targeted either.
The term “U.S. person” includes more than U.S. citizens. It also includes lawful permanent residents of the United States, associations of U.S. citizens or residents, and U.S. companies. None of these can be targeted under 702.
702 uses selectors, not names or keywords. For example, a selector could be a foreign terrorist’s email address (email@example.com) or phone number (+99 555-5555). 702 can’t be used to target names (“Boris Badinov”) or keywords (“terrorism”).
The government collects communications under Section 702 in two ways: “upstream” and “downstream.”
- Messages to or from a target are filtered out as they speed across fiber-optic cables that form the “internet backbone.”
- Upstream collects data in motion.
- Private-sector companies must turn over stored data associated with accounts (email, social media, etc.) validly targeted under Section 702.
- Downstream collects data at rest.
The bipartisan Privacy and Civil Liberties Oversight Board found that Section 702 "has been valuable and effective in protecting the nation's security." Section 702 is especially important for counterterrorism. NSA has described Section 702 as the “most significant tool in the NSA collection arsenal for the detection, identification, and disruption of terrorist threats to the U.S. and around the world.”
As of 2014, more than a quarter of NSA’s reports on international terrorism included information from 702. The Privacy and Civil Liberties Oversight Board explained that "monitoring terrorist networks under Section 702 has enabled the government to learn how they operate, and to understand their priorities, strategies, and tactics."
702 has been instrumental in major counterterrorism successes. Many remain classified, but several are public.
Najibullah Zazi, a Colorado resident, was secretly plotting to bomb the New York subway. Zazi sent an email to an al Qaeda courier in Pakistan asking for bombmaking advice. Fortunately, NSA was monitoring the courier’s email under 702. The FBI arrested Zazi and his accomplices before they could carry out the attack.
Mohamed Mohamud, an Oregon resident, exchanged emails with a foreigner abroad who was targeted under 702. Alerted by that contact, the FBI began investigating Mohamud. He was eventually convicted of trying to bomb Portland’s annual Christmas Tree Lighting ceremony.
Abd al-Rahman Mustafa al-Qaduli (aka “Hajji Imam”) was a top-level member of ISIS’s leadership in Syria. Intelligence from 702 allowed the United States to locate and kill him in a Special Forces raid last year.
Section 702 can only be used to target foreigners, but Americans’ communications can be “incidentally collected” if they communicate with a foreign target. Incidental collection can produce valuable intelligence—especially for “homegrown terrorism.” If someone in the United States is talking to a known ISIS or al Qaeda terrorist overseas, that is an urgent warning sign. At the same time, incidental collection raises privacy concerns for Americans whose communications are captured. To address these concerns, court-approved rules limit how agencies can store, search, and share information about Americans.
Various government bodies oversee Section 702: Lawyers in the NSA’s Office of General Counsel monitor NSA personnel to ensure that they comply with the rules governing the program. Lawyers in the Department of Justice’s National Security Division closely supervise NSA’s work. Every year, the Foreign Intelligence Surveillance Court authorizes the government to use 702 and reviews the rules that will govern it. The independent Privacy and Civil Liberties Oversight Board issued a detailed 2014 report on Section 702 and “found no evidence of intentional abuse."
Section 702 has undergone many significant reforms since Congress last reauthorized the law in 2012.
- The Privacy and Civil Liberties Oversight Board’s ten recommendations for Section 702 have all been implemented in whole or in part.
- Court oversight led the NSA to stop collecting messages that mentioned, but were not to or from, selectors targeted under Section 702. This type of collection was more likely to pull in some purely domestic messages.
- The USA Freedom Act of 2015 strengthened judicial oversight and enhanced transparency about Section 702.
Section 702, like all surveillance powers, raises privacy and civil liberties concerns. This year’s reauthorization debate is likely to focus on several key issues:
- The overall volume of U.S.-person information that Section 702 incidentally collects.
- FBI, NSA, and CIA queries of 702 data to find information about Americans.
- Strengthening oversight bodies like the Foreign Intelligence Surveillance Court and Privacy and Civil Liberties Oversight Board.
- The Justice Department’s use of 702-derived evidence in criminal prosecutions.
- Leaks of classified foreign intelligence information, including information about Americans.
- The practice of “unmasking” the names of Americans mentioned in foreign intelligence reports.
CNAS experts have proposed various ways to address these issues and enhance privacy, transparency, and oversight of Section 702, without reducing its value for counterterrorism and other missions.
The "Section 702" Surveillance Program: What You Need to Know