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Tag Archive: Section 702

Opponents of Closing Sec. 702’s Backdoor Search Loophole are Distorting How the Fix Works

With less than five months to go until Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires, we still do not have a clear path forward to a reauthorization that would also address the law’s substantial problems.  A major reason for this is an impasse on what to do about the law’s most significant flaw: that it permits the government to seek out the content of Americans’ communications that have been swept up through Section 702 without any suspicion of wrongdoing, let alone a warrant, a problem known as “the backdoor search loophole.” Unfortunately, opponents of reforming the loophole have either failed to understand how the proposed fix to the loophole would actually work, or are describing it inaccurately in an effort to discredit reform.…   continue »

We Have Good Reasons to Be Concerned About the Impact of Section 702 on the Criminal Justice System

 

In a recent analysis for Just Security, I explored some concerns about how warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) may be undermining the U.S. criminal justice system. While many of those concerns would apply to the government’s potential reliance on warrantless Section 702 data as part of any criminal probe, I expressed a worry that such data might conceivably be making its way into investigations of relatively low-level suspected offenses (for example, suspected drug-related violations).…   continue »

Letter to the Editor: Why Concerns Over FBI Queries Under Section 702 Are Overblown

 

In her recent article, “Broad Warrantless Surveillance Threatens to Undermine the Criminal Justice System,” Sarah St.Vincent writes that Attorney General Jeff Sessions’ recent comments regarding more rigorous enforcement of drug offenses heightens the concern that the FBI may improperly use information gathered on Americans under Section 702 of FISA to further low-level drug prosecutions.…   continue »

Broad Warrantless Surveillance Threatens to Undermine the Criminal Justice System

 

Congressional debates about the renewal of one of the United States’ most sweeping intelligence surveillance laws are heating up. Helping to shape the discussion are several newly released government documents that highlight the need to ask hard questions about all of the reasons the executive branch may be gathering private communications through warrantless surveillance.…   continue »

The Ninth Circuit’s Constitutional Detour in Mohamud

listening

 

The Ninth Circuit’s decision in United States v. Mohamud continues a trend of disappointing decisions by lower courts on the constitutionality of FISA Section 702 surveillance. There are many bones to pick with these decisions (see Jennifer Daskal’s earlier analysis here), but the most glaring flaw is the fundamental misunderstanding and misapplication of the “incidental overhear” doctrine.…   continue »

Ninth Circuit Upholds 702 Foreign Intelligence Surveillance, But Leaves Open Future Challenges

Yesterday, the Ninth Circuit released its opinion in United States v. Mohamud – a case I described back in January 2015 as a “top national security” case to watch in the coming year.   Bottom line: The court rejects Mohamed’s challenge to the constitutionality of 702 surveillance (so-named that based on the numbering of the statute that authorized it).  …   continue »

Correcting the Record on Section 702: A Prerequisite for Meaningful Surveillance Reform, Part III

In our previous posts, we’ve argued that the NSA is collecting massive amounts of data about US citizens under conditions that have nothing to do with terrorism or national security, thanks to the authorities granted to the US government by section 702 of the Foreign Intelligence Surveillance Act.…   continue »