Emerging Issues in Security

Congress Reauthorizes a Controversial Surveillance Law to Collect Foreign Intelligence

Congress is extending the statute known as Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act that permits the government to collect without a warrant, the e-mails and other communications of foreigners abroad from American firms, like Google, AT&T, and Facebook.

Computer surveillance

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Congress voted earlier this month to renew for 6 years the surveillance program that may collect the content of e-mails, text messages, photos, and other electronic communication without a warrant. The vote was 256–164 to extend the program, known as Section 702 of the Foreign Intelligence Surveillance Act.

Section 702 has its origins in President George W. Bush’s terrorist surveillance program and the Patriot Act. That program was initiated in the immediate aftermath of the 9/11 terror attacks. Congress adopted a temporary measure known as the Protect America Act in 2007 and then approved the FISA Amendments Act (FAA) in 2008. This is the statute that includes the new Section 702.

Section 702 of FISA authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. Even though it specifically bars the targeting of American citizens or anyone residing in the United States, opponents to Section 702 argue that the program also sweeps up the electronic data of innocent Americans who may be communicating with foreigners.

The National Security Agency (NSA) collects millions of video chats, instant messages, and e-mails under Section 702 by compelling companies like Facebook, AT&T, and Google to hand them over. The law also allows the FBI to search through NSA’s database without a warrant.

Proponents of Section 702 consider it a key antiterror tool that is integral to national security. According to U.S. officials, it has helped to thwart numerous terror plots, including the 2009 conspiracy to bomb the New York City subway.

Privacy rights advocates worry the law oversteps its bounds and infringes on Americans’ Fourth Amendment rights. The government can pick up the communications of Americans communicating with foreigners through what is called “backdoor” collection. Edward Snowden’s leaks of classified NSA documents in 2013 revealed widespread abuse of this kind of collection.

U.S. officials note that more than 25 percent of all current U.S. intelligence is based on information collected under Section 702.

In a joint statement on FISA Section 702 Reauthorization before the vote, Daniel R. Coats, director of National Intelligence, Jeff Sessions, attorney general of the United States, Mike Pompeo, director of the Central Intelligence Agency, Christopher Wray, director of the Federal Bureau of Investigation and Admiral Michael S. Rogers, director of the National Security Agency stated that Section 702 is vital to keeping the nation safe.

“Let us be clear: if Congress fails to act, vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure,” said the joint statement.

The resulting intelligence gaps would make it easier for terrorists, weapons proliferators, malicious cyberactors, and other foreign adversaries to plan attacks against our citizens and allies without detection.

According to the joint statement: the intelligence community conducts and uses Section 702 collection in a manner that protects the privacy and civil liberties of individuals. Every single court that has reviewed Section 702 and queries of its data has found it to be constitutional.

In short, the U.S. officials believe Congress got it right in 2008 when it passed Section 702 and in 2012 when Congress reauthorized the law for 5 years without changes. Nevertheless, the intelligence community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law.