A CRUCIAL ASPECT OF NATIONAL SECURITY IN NEED OF REFORM: SECTION 702 OF THE FISA AMENDMENTS ACT.

• Author: Gemar, Stephen
• Position: Foreign Intelligence Surveillance Act Amendments Act of 2008

1. INTRODUCTION

   One of the more effective ways that the United States collects intelligence on terrorism is also one of its most controversial. (1) In 2016, the Federal Bureau of Investigation ("FBI") falsified information on a warrant to the Foreign Intelligence Surveillance Court ("FISC") in order to spy on then presidential candidate Donald Trump's campaign. (2) FBI Director Chris Wray has apologized for the mishandling of the FISA application that contained seventeen "inaccuracies or omissions." (3) More recently, in 2019, Congressman Adam Schiff (D-CA), through the use of a subpoena, obtained phone records from Congressman Devin Nunes (R-CA). (4) The code sections which gives the government the authority to collect this intelligence are 50 U.S.C. [section][section] 1881-1881 g, which is known as Section 702, a section in Title VII of the FISA Amendments Act of 2008. (5) Finally, the Privacy and Civil Liberties Oversight Board ("PCLOB") has stated that, "certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness." (6)

   Since the middle of the Twentieth Century, United States presidents have stated that they possess the constitutional authority to use warrantless electronic surveillance for national security purposes. (7) The 1978 Foreign Intelligence Surveillance Act ("FISA") was passed in response to several instances of warrantless privacy monitoring, such as spying on Dr. Martin Luther King, Jr., that were brought to Congress' attention in the Watergate scandal hearings. (8) Its purpose was to protect United States citizens' privacy rights from the United States government when the government countered national security threats. (9)

   The September 11 attacks brought about the President's Surveillance Program ("PSP"). (10) One aspect of the PSP was the Terrorist Surveillance Program ("TSP")." In 2005, the government sought permission from the Foreign Intelligence Surveillance Court ("FISC") to conduct the surveillance under FISA, the surveillance which was previously done under the TSP. (12) The next relevant development in surveillance policy occurred in 2008 when the FISA Act was amended to include Section 702, which granted the government (the Attorney General ("AG") and Director of National Intelligence ("DNI") in particular) surveillance authority, and permitted the collection of foreign intelligence for foreign citizens who are "reasonably believed to be located" outside of the United States. (13) This surveillance is allowed to be conducted from inside the United States. (14) Section 702 also gives intelligence agencies wide authority to collect foreign intelligence by sweeping United States citizens' communications in a type of collection known as "upstream" or "PRISM" surveillance. (15)

   This comment will examine the collection of data of United States citizens by intelligence agencies under the PRISM program, primarily by looking at recent court cases brought against Section 702 on various legal grounds, but also by inspecting abuses of Section 702 by intelligence agencies, as well as Congress. (16) There have been several constitutional challenges to Section 702 by United States citizens in court, some of which will be discussed and analyzed. (17) Numerous potential methods of curtailing abuses of Section 702 will be reviewed, primarily legislative solutions and solutions government agencies themselves can implement. (18) Overall, this comment will illustrate that Section 702 must be amended, while exploring specific potential changes that might reduce abuses of power by both Congress and intelligence agencies. (19)

2. BACKGROUND

   The Federal Bureau of Investigation ("FBI") was one of the first organizations in the United States government to use widespread wiretapping and surveillance techniques. (20) In the 1960s, government officials began adhering to a "national security" exception--in which Fourth Amendment protections did not apply if a person's rights were violated for the sake of national security. (21) The Supreme Court held that "internal security matters" did not meet the national security exception. (22) In the 1972 case United States v. United States District Court for the Eastern District of Michigan, Southern Division^ the Supreme Court left open the possibility of a potential national security exception to the Fourth Amendment. (24) In its holding, the Court stated that this decision did not address issues concerning the activities of foreign nations or their agents. (25) The Court mentions the Act at issue in this case (Title III of the Omnibus Crime Control and Safe Streets Act of 1968) "does not attempt to define. . . the President's ability] to meet domestic threats to the national security." (26)

   Investigation of the Watergate scandal brought several warrantless privacy violations committed by the Executive Branch to the forefront. (27) Senate Committees discovered the Executive Branch committed several warrantless privacy violations; (28) the warrantless violations included infringements of privacy of a United States Congressman, Martin Luther King, Jr., and other United States citizens. (29) J. Edgar Hoover, former Director of the FBI, was "personally motivated" to gather information about King that would tarnish his reputation and discredit him. (30) The FBI spied on King beginning in 1955 and continued to do so until his assassination in 1968. (31) Furthermore, President Richard Nixon's Administration violated the Fourth Amendment by employing federal resources to spy on various political groups. (32) Among these violations were criminal violations of a wiretapping statute, which were part of the Articles of Impeachment that were drafted against President Nixon before he resigned. (33)

   Upon learning of these privacy violations, Congress took action and passed the FISA Act of 1978. (34) FISA allowed non-criminal surveillance for the first time, but stated that this type of surveillance was only "permissible for the purpose of collecting foreign intelligence and/or foreign counterintelligence." (35) One of the purposes of FISA was to create a secret court to grant warrants for intelligence agencies to collect information on suspects without alerting the suspects. (36) The George W. Bush Administration stated that these Fourth Amendment warrant requirements inhibited identification of "potential terrorist threats." (37)

   1. THE HISTORY OF THE FISA AMENDMENTS ACT OF 2008

      In the aftermath of the September 11 terrorist attacks, the Bush Administration started the Terrorist Surveillance Program as a part of the President's Surveillance Program. (38) President Bush authorized the NSA to use newer intelligence gathering methods. (39) Under the President's Surveillance Program, minimization procedures existed to ensure that the data collected would only be used to find out about and stop potential terrorist attacks. (40) One of the ways in which the President's Surveillance Program allowed the NSA to collect information was through certain international communications; this provision would come to be known as the Terrorist Surveillance Program. (41) In 2005, the government began obtaining authorization from the FISC in order to collect data under FISA which was previously collected under the Terrorist Surveillance Program (42) This authorization was followed by a temporary measure that expired in 2007, known as the Protect America Act of 2007. (43) The Protect America Act was a measure intended to restore "FISA to its original focus of protecting the rights of United States citizens, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas." (44)

      Concerns regarding the timely identification of potential terrorist threats led Congress to take action, (45) and in 2008, it passed the Foreign Intelligence Security Act of 1978 Amendments Act of 2008 ("Amendments Act"). (46) Located within the Amendments Act was Section 702, (47) which serves as a compromise between surveillance conducted in the United States under FISA and overseas surveillance conducted by the National Security Agency ("NSA"). (48) Section 702 and the rest of the Amendments Act were passed to "supplement^ pre-existing FISA authority by creating a new framework under which the Government may seek the FISC's authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad." (49) Section 702 enabled government agencies to monitor a foreign target's internet communications when they passed through the United States; these non-United States persons located overseas are not entitled to the protections of the Fourth Amendment. (50) In 2008, the Foreign Intelligence Surveillance Court of Review ("FISCR") formally recognized a foreign intelligence exception to the warrant requirement of the Fourth Amendment."' (1) Section 702 was most recently reauthorized in 2017 as part of the "FISA Amendments Reauthorization Act of 2017." (52) However, some Members of Congress, like Senator Tom Cotton (R-AR), as well as President Donald Trump, want FISA and Section 702 to be reauthorized permanently, without the need for periodic renewals. (53) To support his position, Senator Cotton stated that Section 702 collects important intelligence that has saved United States citizens' lives and also includes privacy protections for concerned United States citizens. (54)

   2. THE MAIN PURPOSE OF SECTION 702: ENSURING NATIONAL SECURITY

      Section 702's main purpose is targeting a specific "non-U.S. person, group, or entity reasonably believed to be outside the United States." (55) In addition, the target must "possess[] or... is likely to communicate or receive, foreign intelligence information...," (56) United States citizens abroad cannot be targeted using Section 702. (57) Either the NSA or FBI "task," which means the agency, is "directing an acquisition" of data at selectors...