Foreigners and the Review Group Report: Part 2

[Editor’s Note: Just Security is holding a “mini forum” on the Report by the President’s Review Group on Intelligence and Communications Technologies. Others in the series include a post by Marty Lederman analyzing the Report’s highlights, a post by Julian Sanchez examining the scope of the NSA’s section 702 program, a post by David Cole and Marty Lederman analyzing how metadata is used under section 215, a post by Ryan Goodman discussing the effectiveness of the section 215 metadata program, and an earlier post by Jennifer Granick examining the implications for non-US persons.]

 

Yesterday, I wrote that the report from the President’s Review Group on Intelligence and Communications Technologies—“Liberty And Security In A Changing World”—suggests reforms that would improve U.S. surveillance law’s protection of the rights of foreigners. My non US-person friends seem underwhelmed, so I thought I’d take a moment to elaborate on the proposed changes I’m talking about.

Recommendation 13 addresses surveillance of non-US persons under section 702 of the FISA Amendments Act.  As it currently stands, section 702 allows warrantless collection of the content of communications from within the U.S. where the target is a non-US person overseas and at least one party to the communication is overseas.  The target need not be an agent of a foreign power, so long as the acquisition is for foreign intelligence purposes. Foreign intelligence broadly includes both national security concerns and anything that “relates to … the conduct of the foreign affairs of the United States.”

Once intelligence agencies collect information to, from or about the target, the 702 minimization procedures allow them to do pretty much anything they want with the collected data, including share it with a foreign government, so long as it contains foreign intelligence information or evidence of a crime and does not concern a US person.

If implemented, Recommendation 13 would change things in three big ways.  First, it would limit surveillance of foreigners who are not agents of a foreign power exclusively to protecting the national security interests of the United States or our allies.  This is far narrower than the capacious “foreign intelligence interest.”

Second, it would prohibit the government from targeting any non-United States person based solely on that person’s political views or religious convictions. Respect for those First Amendment activities is currently reserved for US persons only under FISA.

Finally, it would prohibit the dissemination of information about non-United States persons if the information were not relevant to protecting the national security of the United States or our allies. In other words, intelligence agencies would not be able to use this suspicionless surveillance tool to discover and use information about foreigners, including by sending the data to the individual’s government for criminal prosecution, except for national security.

Since the vast majority of foreigners have no information relevant to the U.S. national security, these changes could well improve a fundamental problem with the FISA Amendments Act, which is that it brings regular people who are not agents of a foreign power, and those Americans with whom they communicate, under government scrutiny for no good cause.  These reasons are why I believe the Review Group’s suggestions regarding surveillance of foreigners are both welcome and important. 

About the Author(s)

Jennifer Granick

Surveillance and Cybersecurity Counsel at the ACLU's Project on Speech, Privacy and Technology Follow her on Twitter (@granick).