Former Acting FBI Dir. Andrew McCabe, Deputy AG Rod Rosenstein, DNI Dan Coats, and NSA Dir. Adm. Michael Rogers testify on re-authorization of Foreign Intelligence Surveillance Act Section 702 before the Senate Intelligence Committee on June 7, 2017. (Mark Wilson/Getty Images)
Now that the President has signed legislation reauthorizing the use of surveillance powers, it is important to reflect on how the terms of the public debate likely skewed public understanding of the privacy interests at stake. This is not simply an exercise in reflection on the past. It is also important to understand what powers have been handed this administration under Section 702 of the Foreign Intelligence Surveillance Act (FISA)—especially as questions will continue to be raised about the use and abuse of these powers. The language of the public debate has obscured the ways in which the law allows the government to acquire Americans’ communications without a warrant.
We have been told that the acquisition of Americans’ private communications through Section 702 program is “incidental” and that the law does not allow the government to “target” Americans’ communications—but it’s through the use of such language where the confusion begins. If anything, what the recent Section 702 debates reveal is that the FBI considers it vital to access Americans’ communications that have been collected under Section 702 program at various stages of an investigation.
The scope of “incidental” collection is wide. The acquisition of American’s communications occurs when Americans communicate with foreigners that are “targeted” under Section 702. The Attorney General must approve “reasonably designed” targeting procedures, which are subject to review by Foreign Intelligence Surveillance Court (FISC). However, FISC review appears to have served as a rubber stamp—scholars, privacy advocates, and even the FISC itself at one point have called this review “limited.” In other words, the government acquires without suspicion a great volume of communications of both foreigners and Americans—and, the government is not required by a court, or some other check on its power, to narrow its collection activities to search only for communications relevant to terrorism or national security.
So what’s in the name “incidental”? In the case of this government surveillance program, it is the power to skirt what the Constitution demands, and manipulate public understanding of what’s truly at stake.
Over the last decade, digital communications of persons residing in the U.S. have been subject to government surveillance without a warrant. If this seems wrong, that is because it is. The Fourth Amendment requires probable cause of criminal activity and judicial approval of a warrant in these very circumstances. This is to ensure that the government does not abuse its invisible power of searching your e-mails or listening to your phone conversations. You can imagine a leader with authoritarian proclivities using this power to track political opponents. (By way of example, read the final paragraph in Senator Ron Wyden’s essay at Just Security.) Think of how much easier it would be to do this—and not ring any alarm bells—without judicial oversight.
Indeed, that’s what separates so-called “incidental” collection under Section 702 and the frequently analogized “incidental interception” of innocent third parties in regular wiretapping in domestic law enforcement. Despite parallels drawn between the two activities in an attempt to bolster the argument for the constitutionality of “incidental” collection, they are functionally distinct in a major Fourth Amendment way. There is prior judicial approval in the initial interception in the wiretapping context. This means that there is an objective determination of probable cause, and a warrant is issued, prior to the “incidental interception,”—making the “incidental interception” lawful. Under Section 702, there is no prior judicial approval of the initial collection that then enables “incidental collection.” There is no standard of suspicion or limiting check on the government’s power to determine that it is reasonable to incidentally collect a particular Americans’ communications.
This is dangerous because with no threshold requirement of suspicion, the “incidental” collection of communications is also arbitrary—more Americans’ communications are collected for no valid reason. Digging deeper, you can see the differences. In the wiretap context, a judge has found probable cause, necessity and particularity, thus narrowing any incidental collection to those matters connected to the underlying crime. With Section 702, broad foreign intelligence categories, targets and selectors that a judge does not approve and for which there is no probable cause coupled with broad-based collection means that the “incidental” collection will be vast, arbitrary, and unnecessary for the cause.
Yet it is the term “incidental” that has helped pull the wool over the eyes of many, judges included. By calling the activity “incidental” collection, the government creates the perception that the activity itself is minor and peripheral, allowing it to escape its deserved scrutiny. If the collection of Americans’ communications is “incidental,” any person would reasonably expect it to be merely an “extraneous,” “unexpected,” and “inessential” byproduct of the larger surveillance program.
Yet these descriptions are far from the reality of “incidental” collection activity. And, the government itself is sometimes willing to admit as much. A government body that conducts oversight of the Section 702 program—the Privacy and Civil Liberties Oversight Board (PCLOB)—found that “incidental” collection was not “inadvertent” or “accidental” or “infrequent” or “inconsequential.” In the recent round of Section 702 reauthorization debates, advocates of broad surveillance power acknowledged the centrality of “incidental” collection to the overall surveillance program. Congress rejected a key proposal—the Amash/Lofgren amendment—which would have prohibited searches of collected Americans’ communications without judicial approval. Rep. Bob Goodlatte, the Chairman of the House Judiciary Committee, argued that the Amash/Lofgren amendment would “disable” Section 702 by denying law enforcement agencies access to Americans’ communications that had been “incidentally” collected. House Intelligence Committee spokesperson Jack Langer, as another example, said the amendment was “an attempt to kill Section 702 altogether.” (For more on this point, read Julian Sanchez’s analysis.)
In short, the “incidental” collection has become so vast and significant that it appears to be an objective of Section 702. You can tell because when reformers wanted to shut off warrantless access to that data, proponents said it would kill or disable the program. From these revealing moments in the recent reauthorization debates, one can conclude that getting Americans’ messages without a warrant is the point, or a significant point, of the program, and not a side effect. Indeed, courts should review the constitutionality of Section 702 in the future with this legislative history and understanding of the law in mind.
In sum, the public has accepted a decade-long government practice of surveilling Americans’ communications because we were told it was merely incidental, but it is provably consequential and part of the overall design of the Section 702 program.
Because intelligence agencies can search the database of collected communications, the collection of Americans’ communications, albeit “incidental,” enables what is known as a “backdoor search loophole”—the ability to search through communications, which were obtained without a warrant because the targets are foreigners, for the underlying purpose of obtaining communications of Americans. The Section 702 program is designed to capture the communications of any Americans communicating with targeted foreigners. Once that happens, there is broad latitude to search for and use the Americans’ communications. The potential for abuse is also high—as is the case whenever responsibility for achieving results and conducting oversight are consolidated in the same group of persons (here, the Executive Branch) due to the failure of congressional and FISC oversight. While “reverse targeting” (using the pretext of foreign intelligence surveillance to gather information of an American) is formally prohibited, it can’t be ruled out. As Senator Wyden wrote:
Opponents of reform of Section 702 insist that reverse targeting – conducting surveillance of a foreigner when the government is interested in the American on the phone or email – is prohibited. What they don’t say is that, if the government has any interest at all in the foreigner, they don’t call it “reverse targeting,” no matter how many times the government searches for the American or what it does with the American’s information.
Why does it matter that “incidental” collection is a misnomer? It matters because, the government, the public, and even federal judges have accepted that the Fourth Amendment warrant requirement does not apply to “incidental” collection because of the fact that the collection is “incidental”—as if there were some inherent meaning that removes whatever activity “incidental” describes from the requisite analysis of constitutionality. Yet “incidental” has no intrinsic meaning that should be allowed to waive the protection of Fourth Amendment principles.
In 2016, the Ninth Circuit determined in United States v. Mohamud that the Fourth Amendment’s warrant requirement only applies to targets of Section 702 collection, and that communications acquired by “incidental” collection did not require a warrant (the U.S. Supreme Court denied certiorari in Mohamud earlier this month). Fourth Amendment scholar Orin Kerr responded to the court’s decision: “Section 702 draws a statutory distinction between ‘targeting’ someone and merely incidentally collecting that person’s communications. But how is that a constitutional distinction? There’s no Fourth Amendment concept of a ‘target,’ at least that I know of.”
In recent debates to pass the House Permanent Select Committee on Intelligence version of Section 702 reauthorization, the Committee released documents to dispel purported myths surrounding surveillance under Section 702. In these documents, the Committee repeatedly emphasized that the collections of Americans’ communications are lawful and non-invasive because Americans are not actually “targets” under Section 702. Consider, for example, the very first “allegation” and “truth” presented by the Committee:
ALLEGATION: Section 702 enables the U.S. intelligence agencies to collect Americans’ communications without a warrant.
TRUTH: Section 702 is never used to target Americans. Multiple federal courts including the 9th Circuit Court of Appeals and the Privacy and Civil Liberties Oversight Board have found Section 702 to be constitutional. Furthermore, independent reviews by Congressional oversight committees, Inspectors General, federal courts and the President’s Privacy and Civil Liberty Oversight Board have revealed no evidence that Section 702 has ever been intentionally used to target Americans. Doing so would be illegal.
There are multiple sleights of hand here. First, notice that the “TRUTH” does not actually repudiate the “ALLEGATION.” Indeed, the “allegation” is completely correct: “Section 702 enables the U.S. intelligence agencies to collect Americans’ communications without a warrant.” Second, the exposition by the Committee misses the point that Americans’ communications are not only collected under Section 702 without a warrant, but that this harm to privacy is not different in kind depending on whether the collection is “targeted” or “incidental.” Third, it is arguably misleading to say the PCLOB revealed no evidence that Section 702 has been “intentionally used to target Americans,” when the PCLOB acknowledged that Section 702 is designed so that the collection of Americans’ private communications is neither “inadvertent” nor “accidental.” Many might consider that an intention of Section 702 program. Better put, even though Section 702 may not be used to intentionally target Americans, it is designed to allow intentional collection of Americans’ communications.
Congress was arguably able to shirk its responsibility to meaningfully reform Section 702 in part because so much of reform debates centered on the term “incidental” collection. The repeated use of “incidental,” by both privacy advocates and broad surveillance power advocates, ill-served the discussion. The warrantless collection of Americans’ communications under Section 702 is not incidental, at least not in the way that many might understand that term. Describing it as such is likely to lead to shrugs from the audience, rather than the close scrutiny and concern that such significant surveillance activities deserve. (For more on how word games are used to minimize the perceived impact of surveillance, see Chapter 2 of Jennifer Granick’s American Spies.)
“Incidental” collection of Americans’ communications is no fortuitous accident. It is a significant and purposeful part of the Section 702 program. The use of the term “incidental” collection is likely to mollify audiences by papering over how a powerful U.S. surveillance program relies on the warrantless collection of not only the communications of foreigners, but of Americans too. As we enter the next period of government surveillance under Section 702, it will be important for stakeholders and overseers (including the courts) to recognize what the law permits the government to do. The use of the term “incidental” to describe the authority and effect of such programs will not help inform the public debate or constitutional consideration.