Section 702 of the Foreign Intelligence Surveillance Act—the law the U.S. government relies on to conduct sweeping, warrantless surveillance—is once again coming under intense scrutiny. Judicial review of this surveillance is essential in our system of checks and balances, but for years the government has taken steps to block or limit courts’ ability to rule on the lawfulness of Section 702 spying, including by concealing the use of Section 702 in domestic criminal investigations. In the past five years, the Department of Justice’s Section 702 notices—which are required by law whenever DOJ intends to use “any information obtained or derived from” Section 702 surveillance of the defendant in a criminal case—have disappeared altogether. Their disappearance closes off one of the few avenues for robust court review of novel and controversial spying practices like the FBI’s widespread “backdoor searches” of Americans. DOJ’s failure to provide notice is a recurring problem in this arena, and it is essential that Congress take action as it weighs fundamental reforms to Section 702.
Under Section 702, the government vacuums up immense volumes of Americans’ international communications, including phone calls, texts, emails, social media messages, and web browsing. The stated purpose of this surveillance is to pursue foreign intelligence targets, but an untold number of ordinary Americans are ensnared as well.
Even though the FBI obtains these communications without a warrant—based on the claim it is “targeting” foreigners located abroad—its agents routinely use those communications in criminal investigations of Americans. All told, FBI agents searched through the agency’s Section 702 databases looking for the communications of Americans millions of times over the past five years. Although DOJ provided notice of Section 702 surveillance to eleven defendants prior to 2018, DOJ has not provided notice to a single criminal defendant in the five years since then.
Why have the government’s Section 702 notices disappeared?
When Congress enacted Section 702 in 2008, it expressly required notice in criminal cases. Notice to criminal defendants about the use of foreign intelligence surveillance is also required by the Constitution. But from 2008 to 2013, DOJ violated that requirement, after it secretly adopted an unjustifiably narrow view of a key term in the law: when evidence is “derived from” Section 702 surveillance. DOJ’s definition during that time was so narrow that officials decided no one was entitled to notice—effectively cutting off one of the few avenues for judicial review of this surveillance in the public courts.
In 2012, during oral argument in Clapper v. Amnesty International, the Solicitor General assured the Supreme Court that criminal defendants would receive notice of Section 702 surveillance. But it soon became apparent that, unbeknownst to him, DOJ’s policy was not to give notice to defendants—thereby concealing this surveillance and preventing defendants from challenging it. In response to public scrutiny, DOJ revised its notice policy behind closed doors and undertook a review of prosecutions in an effort to identify those where notice should have been given all along. Between October 2013 and April 2014, a total of six defendants received belated notice of Section 702 surveillance.* Between 2014 and 2018, DOJ provided notice to five additional individuals.**
But since mid-2018, based on our review of public court dockets, DOJ does not appear to have provided any Section 702 notices whatsoever. It seems likely that DOJ’s policy or practice has changed again in secret.
Whether individuals get notice of surveillance might seem like a narrow, procedural problem. But in our world of secret electronic surveillance, notice is central to ensuring courts can rule on the lawfulness of the government’s most novel and dangerous spying tools—spying that today affects millions. It is also essential to protecting the due process rights of individuals the government accuses of grievous crimes, so they have a fair opportunity to challenge investigators’ use of warrantless searches.
People who don’t know about secret surveillance can’t challenge it in court. The government surely understands this, and it has repeatedly resorted to secret legal interpretations and evidence laundering techniques like “parallel construction” to avoid giving notice of surveillance. As explained below, it has also misused the Classified Information Procedures Act (CIPA) to hide surveillance.
With momentum building for far-reaching Section 702 reforms, Congress has the opportunity to fix this recurring notice problem and ensure DOJ can no longer hide such surveillance in court.
How DOJ Evades its Notice Obligations
Given the FBI’s routine reliance on Section 702 in criminal and foreign intelligence investigations, the vanishingly small number of Section 702 notices is striking—and implausible. FBI agents query Section 702 databases in virtually every national security investigation. Since 2008, DOJ has prosecuted hundreds of individuals for terrorism-related charges, and the Privacy and Civil Liberties Oversight Board’s July 2014 report stated that Section 702 surveillance contributed to “well over 100 arrests on terrorism-related offenses.” The government has relied on Section 702 queries in ordinary criminal investigations as well. While not every Section 702 query will produce evidence that contributes to the government’s case at trial, the available data strongly suggests that communications obtained through such queries have been relied on in more than a mere eleven prosecutions.
DOJ has long refused to disclose its interpretation of Section 702’s notice requirement, using secrecy to insulate it from public review and scrutiny. But DOJ’s failure to provide any notices since 2018 suggests that it has once again adopted an exceedingly narrow reading of the current statute.
The statute requires DOJ to provide notice to defendants when the government uses information “obtained or derived from” Section 702 surveillance in a proceeding—but it does not define “derived from.” DOJ has many incentives to define that term narrowly, including to conceal the surveillance and to prevent courts from reviewing its lawfulness. (Though officials might argue that notice could tip off foreign targets, Section 702 notices are bare-bones filings that never identify the government’s targets, and the prosecution alone will reveal the existence of the underlying FBI investigation.) As noted above, when DOJ improperly withheld notice from 2008 to 2013, it was because it had secretly adopted an interpretation of “derived from” that in practice eliminated its notice obligation. In 2016, DOJ issued internal guidance on the meaning of “derived from” to all prosecutors, but it has refused to release that 32-page memorandum publicly.
Under the Trump or Biden administrations, DOJ may have revised its notice policy behind closed doors once again, adopting an interpretation so narrow that it produces no Section 702 notices at all. For example, that policy may treat evidence as “derived from” Section 702 surveillance only when agents have expressly relied on Section 702 information in a subsequent application for a warrant or similar legal process. Such an interpretation would allow DOJ to withhold notice even where Section 702 surveillance played a vital role in an investigation, depriving the defense of any opportunity to challenge the surveillance.
DOJ and the FBI may also be structuring investigations in ways designed to conceal their reliance on Section 702 surveillance. In other contexts, agents have repeatedly been instructed to “scrub” or avoid referencing sensitive surveillance in affidavits, court proceedings, and investigative reports. And using “parallel construction,“ agents may glean information from Section 702 queries, then reobtain the same information from another source. In addition, FBI agents may be failing to adequately track and document their reliance on Section 702 information, making its role hard to trace once a prosecution is filed. These tactics hide the government’s use of communications obtained through warrantless Section 702 surveillance as part of its criminal investigations and prosecutions.
The Classified Information Procedures Act (CIPA) may also play a role in concealing Section 702 surveillance. Even if a defendant knows or suspects he was subject to Section 702 surveillance in absence of notice by the government, and requests information regarding that surveillance in discovery, the government may use ex parte filings under CIPA to argue that although it collected or queried a defendant’s communications under Section 702, its evidence was not “derived from” that surveillance. On the basis of those secret, one-sided claims minimizing the role of Section 702, the court may deny the defendant’s request for discovery. As the DOJ Inspector General reported, the government used this tactic to conceal Section 702’s precursor—StellarWind surveillance—in every criminal case where it played a role.
A version of this argument spilled out in public in United States v. Osseily, where the defendant learned he was subject to FISA surveillance but the government refused to provide notice. DOJ argued that it need not provide notice when, in its view, a defendant would not ultimately prevail on a motion to suppress the evidence. But that approach wrongly conflates the legal standard for notifying a defendant about surveillance in the first place with the standard for prevailing on a later suppression motion. In all but the rarest case, defendants must receive notice of secret surveillance before they can fairly present arguments about why the resulting evidence should be suppressed. By withholding notice, DOJ is unilaterally deciding the suppression question in its own favor.
A similar problem exists when the government secretly argues in classified CIPA filings that it should not have to disclose its use of surveillance—even to security-cleared defense counsel—because the resulting evidence would not be subject to suppression. Those ex parte arguments violate the Supreme Court’s landmark ruling in Alderman v. United States, a case involving the wiretapping of foreign spies. There, the Court held that because the question of whether the government’s evidence should be suppressed as “fruit of the poisonous tree” is so often factually and legally complex, that question cannot be fully and fairly litigated on an ex parte basis. Instead, the Constitution requires that litigation over whether evidence is “derived” be adversarial.
DOJ has argued that Alderman’s requirement of adversarial process applies only where it is already established that the surveillance was illegal, but there is no logic to such a limitation. A central purpose of a suppression motion is to test whether a search was lawful. Yet DOJ’s position is designed to prevent defendants from challenging the legality of controversial or novel surveillance in the first place.
This misuse of CIPA—virtually all of which occurs out of view in secret court filings—may be used to block criminal defendants from challenging warrantless surveillance like that conducted under Section 702. That one-sided approach violates the Supreme Court’s requirement that complex factual and legal questions related to “derived” evidence be litigated in a fair, adversarial proceeding.
Urgent Reforms Are Needed
Despite pressure from the Biden administration to renew Section 702 as-is, calls for reform have been mounting in Congress. The impending sunset provides an important opportunity to close the loopholes DOJ is relying on to avoid its notice obligations.
In order to facilitate judicial review and protect individuals’ due process rights, Congress must clearly define “derived from” for the purpose of notice. The definition should make clear that the term includes any reliance on Section 702 surveillance of the defendant in the investigation leading up to a prosecution. This definition would eliminate the government’s ability to use parallel construction or other secret legal acrobatics as a workaround. The government may argue that providing fair notice in criminal cases could reveal sensitive information, but these claims are often exaggerated to gain an advantage in litigation. A Section 702 notice is a one-paragraph, boilerplate statement that the surveillance was used. It does not reveal how the surveillance was conducted, what communications were collected, or who the government’s target was. But it ensures that the government does not hide its reliance on secret, warrantless searches as it seeks to deprive individuals of their liberty. As in other cases where FISA notice is provided, the parties would then engage in adversarial litigation about whether defense counsel can obtain discovery and, ultimately, whether or not the evidence should be suppressed.
Going forward, criminal defendants and the public also deserve to know what standards the DOJ is applying in deciding whether to provide Section 702 notice. Without transparency about DOJ policy, there can be no evaluation by anyone outside of DOJ as to whether its interpretation of the law is justifiable. Through its oversight functions, Congress can require that DOJ’s notice policies be made public. Congress can further increase transparency by strengthening requirements that DOJ track the use of Section 702 surveillance in investigations, and that DOJ provide an annual accounting of how many Section 702 notices it has given and in which specific cases.
Notice, of course, is not a stand-alone solution to the privacy violations inherent in Section 702. Congress should only reauthorize Section 702 if it’s accompanied by far-reaching, fundamental reforms. As our we and our colleagues have written, those reforms should also include, for example, ending the practice of backdoor searches, and establishing legislative safeguards and judicial oversight for surveillance affecting Americans. But notice plays an essential role, both for the protection of individual defendants’ due process rights, and for enabling judicial review of the governments’ surveillance practices. Congress has an important opportunity to examine how Section 702 is working in practice and course-correct—which is the very purpose of imposing periodic sunset dates on sweeping surveillance laws like this one. Congress should ensure a strengthened notice requirement makes its way into any reauthorization of Section 702.
* The six cases are: United States v. Zazi, No. 1:09-cr-00663 (E.D.N.Y.); United States v. Mohamud, No. 3:10-cr-00475 (D. Or.); United States v. Mihalik, No. 2:11-cr-00833 (C.D. Cal.); United States v. Hasbajrami, No. 1:11-cr-00623 (E.D.N.Y.); United States v. Muhtorov, No. 1:12-cr-00033 (D. Colo.); United States v. Khan, No. 3:12-cr-00659 (D. Or.).
** The three cases involving notice to five defendants are: United States v. Mohammad, No. 3:15-cr-00358 (N.D. Ohio); United States v. Al-Jayab, No. 1:16-cr-00181 (N.D. Ill.); United States v. Kandic, No. 1:17-cr-00449 (E.D.N.Y.).