Updated developments regarding FAA Section 702 and related matters

I’ve published a couple of posts here tracking some of the more important recent developments respecting Section 702 of the FISA Amendments Act of 2008.  This post is an updated compendium.

The most significant recent development is, of course, the report on Section 702 issued by Privacy and Civil Liberties Oversight Board on July 2.  The PCLOB’s hearing on Section 702 took place on March 19:  Here’s the transcript.  Links to the video and audio recordings, and to the written submissions of the witnesses, are collected here.

Later on July 2, Jennifer Granick asked a series of questions on this blog about the PCLOB Report.  PCLOB Chair David Medine then published an extremely informative and helpful guest-post here, responding to Jennifer.  Julian Sanchez followed up with some important questions raised by the PCLOB Report and Medine’s post.

A few days before the PCLOB Report, Judge King of the District of Oregon issued the first judicial opinion on the constitutionality of Section 702, concluding in the case of United States v. Mohamud that the statute does not violate Article III or the Fourth Amendment.  Here are Mohamud’s opening brief; the government’s response; and Mohamud’s reply.

In another district court case, U.S. v. Muhtorov (D. Colo.), briefing on the same questions is completed:  Here is Muhtorov’s opening brief on the merits; the government’s responsive brief; and Muhtorov’s reply brief.

My colleague Laura Donohue has written the first comprehensive academic treatment of Section 702; and Laura has now updated the paper to account for the PCLOB Report and the Mohamud decision.  Laura addresses the history of the statute, its constitutionality, and questions about whether the government’s and FISC’s application of Section 702 is consistent with the statute.  (Her summary of the paper is below.  Laura also has written a companion piece on bulk metadata collection, available here.)  (Owen Fiss also published an earlier critique of Section 702 here.)

The Director of NSA’s Civil Liberties and Privacy Office issued this report on the Agency’s compliance with Section 702.

Finally, on June 30, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released a report on “the right to privacy in the digital age,” concerning human rights law and electronic surveillance.  Jonathan Horowitz and Sarah Knuckey wrote about it here.

And former State Department official Jonathan Napier Tye wrote this provocative column about overseas surveillance conducted pursuant to Executive Order 12333.  Tye was one of several witnesses at the PCLOB’s public meeting on July 23 — the transcript is here.  The PCLOB issued its semi-annual report the day before — it’s here.

Laura Donohue’s abstract of her new paper on Section 702:

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas.  Recent media reports and declassified documents reveal a more extensive program than publicly understood. The Article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection under Executive Order 12333.

The Article next turns to statutory issues related to targeting, post-targeting analysis, and the retention and dissemination of information.  It argues that the NSA has sidestepped FAA restrictions by adopting procedures that allow analysts to acquire information to, from and about targets.  In its foreignness determination the agency assumes, absent clear evidence to the contrary, that the target is a non-U.S. person located outside domestic bounds.  And weak standards mark the foreign intelligence purpose determination.  Together, these elements allow for the collection of U.S. persons’ international communications, even as they open the door to intercepting domestic communications.  In regard to post-targeting analysis, the Article draws attention to the intelligence community’s use of U.S. person information to query data obtained under §702, effectively bypassing protections Congress introduced to prevent reverse targeting. The Article further notes in relation to retention and dissemination, that increasing consumer and industrial reliance on cryptography means that the NSA’s retention of encrypted data may soon become the exception that swallows the rule.

In its constitutional analysis, the Article finds certain practices instituted under §702 to violate the Fourth Amendment.  The NSA’s actions, for purposes of the warrant clause, are constitutionally sufficient insofar as foreign intelligence gathering to or from non-U.S. persons is concerned.  The tipping point comes in regard to criminal prosecution.  Absent a foreign intelligence purpose, there is no exception to the warrant requirement for the query of U.S. persons’ international or domestic communications.  The interception of U.S. persons’ communications under §702 must comport with the reasonableness requirements of the Fourth Amendment.  A totality of the circumstances test, in which the significant governmental interest in national security is weighed against the potential intrusion into U.S. persons’ privacy, applies.  The incidental collection of large quantities of U.S. persons’ international communications, the scanning of content for information about non-U.S. person selectors/targets, and the interception of domestic communications in MCTs, as well as the query of data using U.S. person identifiers, fall outside the reasonableness component of the Fourth Amendment.

The Article concludes by calling for renewed efforts to draw a line between foreign intelligence gathering and criminal law and to create higher protections for U.S. persons, to ensure that the United States can continue to collect critical information, while remaining consistent with regard to the right to privacy embedded in the Fourth Amendment.

  

Filed under:
About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).