Section 702 and the collection of international telephone and Internet content.

Author:Donohue, Laura K.
Position:Foreign Intelligence Surveillance Act Amendments Act of 2008 - II. Programmatic Collection A. Targeting through B. Post-Targeting Analysis, p. 153-198

Almost immediately after passage of the FAA, members of Congress, scholars, and others began criticizing Section 702 because of the potential for the government to use the authorities to engage in programmatic surveillance. (144)

In 2009 prominent national security law Professor William Banks explained, "the FAA targets do not have to be suspected of being an agent of a foreign power or, for that matter, they do not have to be suspected of terrorism or any national security offense, so long as the collection of foreign intelligence is a significant purpose of the surveillance." (145) Surveillance could be directed at a person, organization, e-mail address, or even "an entire ISP or area code." (146) He noted, "the surveillance permitted under the FAA does not require that the Government identify a particular known facility where the intercepted communications occur." (147) These provisions represented a sea change from how FISA had previously worked (albeit introducing, for the first time, statutory restrictions in an area previously governed by Executive Order). U.S. persons' communications now could be incidentally collected under the statute, on a large scale, without many of the protections in traditional FISA. (148)

Banks presciently pointed out the most likely way in which the new authorities would be used:

Although details of the implementation of the program ... are not known, a best guess is the Government uses a broad vacuum cleaner-like first stage of collection, focusing on transactional data, where wholesale interception occurs following the development and implementation of filtering criteria. Then the NSA engages in a more particularized collection of content after analyzing mined data ... [A]ccidental or incidental acquisition of U.S. persons inside the United States [will] surely occur[], especially in light of the difficulty of ascertaining a target's location. (149) For Professor Banks, part of the problem was that the nature of international information flows meant that it would be impossible to tell if an individual is located overseas or within domestic bounds. (150)

Banks was not the only one to question the implementation of Section 702. Cases began to appear, raising facial and as applied constitutional challenges. Problems characteristic of relying on Article III courts in the context of surveillance came to the fore. In Clapper v. Amnesty International, plaintiffs alleged that Section 702 violated the targets' Fourth Amendment rights because it allowed for the acquisition of international communications absent an individualized court order supported by probable cause. (151) The Supreme Court dismissed the suit for lack of standing--that is, the absence of any concrete injury. It did not reach the merits of the Fourth Amendment claim. (152)

The FAA was set to expire at the end of 2012. By early February, James Clapper, the Director of National Intelligence, and Attorney General Eric Holder had informed Congressional leaders that reauthorization of the FAA was "the top legislative priority of the national Intelligence Community." (153) The Administration credited the FAA with the production of "significant intelligence that is vital to protect the nation against international terrorism and other threats." (154) Offering classified briefings and attaching an unclassified annex, Clapper and Holder wrote, "We are always considering whether there are changes that could be made to improve the law in a manner consistent with the privacy and civil liberties interests of Americans." (155) But their "first priority" was "reauthorization of these authorities in their current form." (156)

The NSA's inability to provide the number of American citizens' communications intercepted under the act became a matter of public debate. In May 2012 Senators Ron Wyden and Mark Udall raised concerns about what they referred to as a "back door" in the statute. (157) In June 2012 SSCI noted numerous senators' concern about the IC's inability to provide an estimate of the number of individuals whose communications had been intercepted. (158) Attention was further drawn to the lack of information about whether the NSA had attempted to search Americans' communications without a warrant. (159) By the end of July 2012, more than a dozen senators had joined a letter to Director of National Intelligence James R. Clapper, expressing alarm "that the intelligence community has stated that 'it is not reasonably possible to identify the number of people located inside the United States whose communications may have been reviewed' under the FAA.'" (160)

These concerns did not stop the legislation from progressing. Congress did not hold any hearings on the renewal bill. (161) Efforts to amend the legislation failed. (162) On September 12, 2012, with minimal debate, the House voted to reauthorize the FAA 301-118. (163) The Senate passed the bill at the end of December 2012, 73 to 23. (164) President Obama signed the legislation, extending the FAA until Dec. 31, 2017. (165)

Six months later, the Snowden documents again forced Section 702 into the public discussion. The information that has since emerged raises statutory and constitutional concerns with regard to three areas: targeting, post-targeting analysis, and the use and dissemination of information.

  1. Targeting

    As aforementioned, Section 702 places four limitations on acquisition, each of which is meant to restrict the amount of information that can be obtained by the government. (166) The NSA has sidestepped these statutory restrictions in three important ways: first, it has adopted procedures that allow analysts to acquire information "about" selectors (that is, communications modes used by targets) or targets, and not merely communications to or from targets (or selectors employed by targets), or information held by targets themselves. Second, it has created a presumption of non-U.S. person status: That is, if an individual is not known to be a U.S. person (and thus exempted from Section 702 and treated either under Sections 703 and 704 or under traditional FISA, depending on the location), then the NSA assumes that the individual is a non-U.S. person. Third, the NSA has failed to adopt standards that would require it to ascertain whether a target is located within domestic bounds. Instead, the agency, having looked at the available evidence, absent evidence to the contrary, assumes that the target is located outside the United States. These interpretations work together to undermine Congress's addition of Sections 703 and 704, even as they open the door to more extensive collection of domestic communications.

    In 2008 Congress anticipated that U.S. person information would inadvertently be collected under Section 702. This is in part why it included minimization procedures, as well as limits on what could be collected. Most Members, however, do not appear to have contemplated broad, programmatic collection that would undermine protections introduced in Sections 702 and 703. (167) Those who did articulate this possibility voted against the bill.

    Even if Congress did not initially appreciate the potential for programmatic collection, however, certainly by 2012 the intelligence community had made enough information available to Congress for Members to make an informed decision. This does not mean that all Members were fully informed. But to the extent that Members selected not to access the material or to take a public stand on the matter, particularly in light of the legislature's reading of its authorities with regard to classification, fault lies with Congress.

    The Foreign Intelligence Surveillance Court failed to step into the gap. In 2011, FISC realized the implications of the NSA's interpretation of to, from or about (TFA) collection. However, in light of the seriousness of the NSA's aim (protecting national security), and the limitations imposed by the types of technologies being used, the Court read the statute in a manner that found the targeting procedures to be consistent with the statute.

    To the extent that NSA's TFA and assumptions regarding the target's foreignness undermine the law as it is written, the legislature failed to perform effective oversight. Congress similarly neglected to uphold the limit placed on the intelligence community to not knowingly collect domestic conversations. Instead, it relied on FISC to do so--a task that the Court failed to do. In a classified environment, when so much information is cloaked from public view, it becomes even more important for the government to ensure that the authorities as they are publicly presented are consistent with the manner in which they are being exercised.

    1. Information To, From, and About Targets

      The FAA focuses on acquisition with reference to the status and location of the target. It is silent on the relationship between the target and the information (whether only information held by the target, or communications to which the target is a party, may be obtained). In the absence of explicit language, the NSA has interpreted Section 702 to enable the agency to obtain information "about" targets.

      The NSA's 2009 targeting procedures state that the agency may seek "to acquire communications about the target that are not to or from the target." (168) The minimization procedures similarly acknowledge the collection of information related to entities of interest. (169) They explain, "As communication is reviewed, NSA analyst(s) will determine whether it is a domestic or foreign communication to, from, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime." (170) The 2011 minimization procedures retain this focus. (171)

      In implementing the procedures, the NSA draws a distinction between PRISM and upstream collection. In the context of the former, the NSA states that it only collects information to...

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