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Oct 31

You’re Being Watched: Civil Liberties at Risk under FISA Section 702

Kayden Green

Edited by Ananya Singh, Sahith Mochalra, and Jia Lin


In an age of unprecedented national security threats and rapidly evolving digital communications globally, Section 702 of the Foreign Intelligence Surveillance Act was authorized to empower U.S government intelligence to collect specific foreign intelligence information outside of the U.S without a warrant on non-U.S persons [1]. Congress enacted Section 702 in 2008 to update U.S national security surveillance legislation to keep pace with modern technological advancements, and enable government intelligence to conduct targeted surveillance of electronic communications collected by online service providers [2]. Targeted intelligence information concerns topics ranging from  international terrorism aimed at the U.S and its security interests, weapons proliferation developments, cybersecurity concerns, and various communications conducted outside the U.S, as identified by the Attorney General and Director of National Intelligence, as vital to national security. However, Section 702 has repeatedly been abused to commit “backdoor searches” of U.S citizens and their communications– raising profound questions regarding the privacy, security, and the delicate balance between national security and civil liberties [3]. In response, multiple lawsuits such as ACLU v. NSA and EPIC v. NSD have risen to address these abuses and their public disclosure [4] [5]. These “backdoor searches” and repeated noncompliance by government agencies violate fundamental civil rights against “unreasonable search and seizure” outlined in the fourth amendment of the U.S Constitution [6]. A semi-annual joint assessment of FISA’s Section 702 is regularly published to evaluate the compliance of government agencies with the bill and utilized by the Foreign Intelligence Surveillance Court (FISC) to address government agency exploitation of Section 702. However, recent compliance assessments have recorded overall compliance incident rates as high as 20.28% in 2019, where over one in every five Section 702 queries were used illegally against US citizens [7]. With U.S. citizens unalienable rights at risk under Section 702, it becomes increasingly paramount to enact revisions to the bill’s provisions to prevent further incidents and protect U.S. persons’ civil liberties and privacy.


Section 702’s Provisions and Targeting 

Congress passed Section 702 of FISA in 2008 to address evolving technology and national security communications methods after the act’s initial passing in 1978 [8]. This was in response to the U.S War on Terror as foreign adversaries utilized email accounts serviced by U.S companies [9]. The section permits the targeting of non-US persons who are reasonably believed to be located outside of the United States and who are expected to possess or communicate foreign intelligence information, such as that regarding weapons of mass destruction or terrorism [10]. FISA collects, uses, and analyzes data stored by US internet service providers that travels across the internet via telecommunications providers without needing to obtain a warrant [11]. The act explicitly prohibits the targeting of U.S citizens and any person inside the U.S [12]. Reverse targeting is also prohibited, where government surveillance queries cannot target a foreign individual if the real purpose is to obtain information regarding a U.S citizen. It is intended that the only permitted instance of a U.S person’s information being collected is if the targeted foreign individual communicates with or discusses information concerning a U.S person, and has provisions in place to minimize the collection of information regarding the U.S person [13]. FISA’s Section 702 has largely contributed to the success of modern international security concerns in cybersecurity, weapons proliferation, counterterrorism, and the protection of U.S troops abroad, [14].  Although Section 702 is necessary for government agencies to access time-sensitive security information, in practice the bill has demonstrated repeated harms to U.S persons and been misused to violate civil liberties.


Misuses

While Section 702 of FISA is not intended for collecting information on U.S citizens, the bill has repeatedly been exploited by government agencies as a way to circumvent the necessity of a warrant in issues that are deemed time sensitive. Legal loopholes within Section 702 have resulted in it being cited to authorize warrantless domestic spying of U.S persons’ internet driven communications through “backdoor searches” [15]. Many of these cases have been determined to have lacked proper authorized purposes by the Foreign Intelligence Surveillance Court and Joint Assessments of FISA 702 Compliance, as oftentimes these “backdoor searches” rely on improper considerations rooted in conscious or unconscious biases and beliefs [16]. These abuses of Section 702 often address U.S persons pursuing actions constitutionally protected in their civil rights and liberties, and highlight now the bill has been misused as a domestic spying vehicle and “search engine” for personal information. 


CASE 1

In 2020, Section 702 was authorized for the collection of communication and the personal data of 141 racial justice and political activist group members that organized protests following the death of George Floyd [17]. It was later found in 2021 that the FBI conducted hundreds of noncompliant queries through Section 702 concerning individuals arrested in connection to civil rights unrest and protests [18]. These searches were conducted despite a lack of reason to believe the searched individuals would have information previously collected in the Section 702 databases [19]. Protest activity is covered by the First Amendment, and searches regarding social advocacy and non-violent civil protests within the U.S conducted by U.S persons directly violate the provisions for civil liberties laid out in Section 702. 


CASE 2

In 2021, the Foreign Intelligence Surveillance Court determined that one individual misidentified 265 queries between May 2020 and February 2021 as not involving U.S. persons [20].  This individual stated they purposefully improperly recorded the queries as regarding non-U.S persons “even if the facts indicated otherwise” in regard to businesses and mosques, hoping to avoid court oversight for their searches [21]. Although this employee was retrained upon discovery of the violation, the semi-annual joint assessments of FISA Section 702 repeatedly attributes compliance violations to misunderstandings and internal discrepancies surrounding when queries can legally be investigated [22] [23]. Status as a racial or ethnic minority within the U.S, membership to a U.S mosque, and owning a U.S business are not bases for search under Section 702.


CASE 3

In 2022, a search was conducted on a U.S state judge who had filed a complaint to the FBI regarding an alleged civil rights violation by a municipal chief of police, and was found to not meet the “reasonably likely to retrieve” standard within FBI policy [24]. Conducting searches on U.S citizens is not permitted under Section 702, and investigating the U.S person’s communications on the basis of a legal civil liberties complaint against a U.S police officer does not fall under Section 702’s national security concerns that permit investigation.


Section 702 as a Search Engine

U.S persons who reported tips to the FBI were subject to their own information being searched in the Section 702 database as recently as 2023 [25]. The FBI has obtained tip information from individuals known to be located in the U.S. and has searched the Section 702 database for the tip providers' information to assess the validity of their claims [26]. This behavior was found even when no apparent connection to foreign intelligence concerns could be determined, and suggests that the FBI has been exploiting Section 702 as a “search engine” for Americans’ personal information [27]. The FBI’s awareness that the tip provider was located in the United States along with the lack of  connection to foreign intelligence concerns in the tips violate Section 702’s guidelines and provisions. 


These violations are not in the minority, as the FISCand Joint Assessments of FISA Section 702 have reported hundreds of thousands of abuses of the act against U.S persons [28]. Warrantless surveillance techniques without probable cause that allow law enforcement and intelligence government employees to access private American data raise various civil rights concerns. As these violations are frequently brought to light through lawsuits and FISC opinions, reforming the Section 702 bill is increasingly imperative. While many of these issues likely stem from operational and enforcement problems within the government agencies that utilize Section 702, vague language regarding how Section 702 is carried out within the bill may be a source of repeated difficulties. By revising the language within the bill to address civil rights and unconstitutionality concerns, Section 702 could be widely redirected towards its intended purpose while maintaining the security and privacy of U.S citizens. With over 5.45 billion internet users globally and the rapid evolution of technological dependence within modern society and governance, the protection of U.S civil liberties during national security surveillance measures directed at non-U.S persons is a critical concern of legislators who have submitted and supported legislation to address Section 702’s potentially unconstitutional permissions [29].


Government Surveillance Reform Act of 2023

To address these growing concerns of government agencies misusing Section 702 to obtain private U.S citizen information without probable cause, the Government Surveillance Reform Act of 2023 was introduced on November 7th, 2023 [30]. Sponsored by Senator Ron Wyden, the reform bill is aimed at preventing exploitation of civil liberties and constitutional concerns Section 702 permits in its current form [31]. Upon passage, the bill would reform Section 702 to prevent warrantless backdoor searches, prohibit the collection of domestic communications, and ensure foreigners are not targeted as an excuse to spy on U.S persons with whom they are communicating online [32]. It also addresses government acknowledgement of violations by requiring sufficient accountability for abuses and ensures the government provides accurate information to the FISC [33]. The act aims to restore constitutionality to FISA and Section 702 by ensuring the legislation is properly updated to address modern technology and communications methods [34]. Many of the reforms to Section 702 are also applied to Executive Order 12333 in this bill, a similar security intelligence act that establishes a framework for the intelligence community to operate in while protecting U.S civilian civil liberties and privacy. The reform act establishes the requirement of a warrant to conduct surveillance on U.S persons via their digital communications and data, and creates additional restrictions for intelligence community query processors before they can pursue any searches via Section 702 [35].


These revisions to Section 702 would provide concrete legislation addressing the domestic concerns of the bill’s frequent abuse while facilitating an improved network for ensuring the legislation is utilized as intended. While there have been attempts within government agencies that utilize Section 702 for surveillance, such as the FBI and NSA, these internal reforms have only been marginally successful and report largely fluctuating degrees of overall compliance [36]. Following high levels of the bill’s unauthorized use as depicted in Case 2 and the 20.28% overall compliance incident rate for the FBI in 2019, the FBI began implementing large-scale remedial measures to improve their query compliance [37] [38]. The April 2023 Opinion of the FISC confirmed substantial improvements in query compliance by the FBI following these extensive internal reforms [39]. After the implementation of these measures, the court found that the FBI was in compliance during over 98% of its queries [40]. However, a 98% compliance rate may not be enough when civil liberties are at risk, and current language in Section 702 leaves the possibility for U.S person inquiries to continue. The rise of domestic conflict that prompts U.S persons investigation may motivate continued malpractice as seen in Case 1 following the George Floyd civil rights protests, and limited accountability for abusing Section 702 may influence an agency’s query investigators to pursue unauthorized searches due to the precedent of mild repercussions. In Case 2, the query investigator who confessed to purposefully mislabeling queries regarding U.S mosques and businesses to avoid Foreign Intelligence Surveillance Court oversight was simply retrained on how to conduct queries appropriately [41]. When individuals merely face mild repercussions for repeatedly using Section 702 databases in an unauthorized manner, the integrity of the system and defense of U.S constitutional civil liberties are jeopardized. More extensive measures regarding compliance, query approval, and database access are necessary to continue working towards a zero-tolerance policy for warrantless backdoor searches on U.S persons. Whether these forms manifest in direct Attorney General and Director of National Intelligence query approval or enhanced query-investigator oversight by the FISC, compliance with Section 702 should be the primary target of government agency reform measures until Section 702 is no longer abused to a degree where semi-annual joint assessments addressing compliance issues are standard. By imposing greater restrictions on Section 702 data and enforcing strict penalties against its illegal use, government agency employees will be more likely to uphold themselves and their colleagues to higher standards that ensure the protection of U.S citizen privacy. 


The Government Surveillance Reform Act of 2023 was introduced November 7th, 2023 in an attempt to preempt FISA’s Section 702 original sunset date of December 23rd, 2023 and the bill’s likely reauthorization [42]. Although Section 702’s sunset date was extended to April 2024 while reform measures were debated in Congress, Section 702 was reauthorized without substantial reforms [43]. While the Government Surveillance Reform Act’s provisions were not implemented in their entirety, the Reforming Intelligence and Securing America Act does revise Section 702 in various ways. The new act primarily addressed the FBI compliance issues and subsequent reform by “requiring the FBI Director to establish consequences for noncompliant querying of U.S. person terms, including zero tolerance for willful misconduct”, and “requiring applications for a surveillance order under FISA to be supported by sworn statements” [44]. Willful misconduct, as reported by the FISC in Case 2, is also addressed by increasing criminal penalties related to FISA and requiring significant adverse punishments for agency employees who intentionally misuse Section 702 [45]. These changes should significantly reduce the degree of overall compliance errors found regarding Section 702, although the results of the revisions to Section 702 will not be declassified for some time after the FISC conducts their next joint assessment reviewing compliance. These reforms are a critical introductory step towards the reformation of surveillance and intelligence legislation, but further efforts on the part of legislators and organizations such as EPIC and ACLU are still necessary to secure the protection of U.S civil liberties.


So What Now?

U.S civil liberties protected under the fourth amendment against unknowingly warrantless search and seizure will remain at risk until Section 702’s language is revised to ensure domestic protection from surveillance and operational guidelines are legitimately enforced. The bill requires specific language updates that address modern technology and data collection to strengthen the legal foundation of this critical national security bill. While the FISC rulings address limiting knowledgeable abuse of Section 702, the original bill states that U.S persons are not to be surveilled, and further legislation that directly addresses this such as the Government Surveillance Reform Act is necessary to ensure U.S persons’ civil liberties [46] [47]. The abuse of Section 702 as depicted in Cases 1, 2, 3, and the use of Section 702 as an FBI population “search engine” proposes a broader conversation on how conscious and unconscious biases impact agency abuse of the Section 702 database and consequent query mislabelings [48]. When government surveillance is knowingly conducted illegally against U.S. persons exercising their First Amendment rights, such as peaceful protest or freedom of religion, various concerns are raised. In response, citizens may question the integrity of the U.S. government and its adherence to foundational legislation like the Constitution. Instances such as Case 3 and the FBI’s record of using the Section 702 database as a search engine to validate tip claims by citizens further corroborates this concern, as citizens will be less inclined to provide potentially critical national security information to government agencies when they believe their personal data may be searched unknowingly [49]. Whether reforms that address government misuse of Section 702 against U.S. civilians are implemented through the Foreign Intelligence Surveillance Court or through stricter legislation that expands on the Reforming Intelligence and Securing America Act, the personal data and digital privacy of U.S. citizens will remain vulnerable until these safeguards against Section 702’s vague provisions are firmly established in law.


 

[1] Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[2] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[3] Epic v. NSD (Section 702 Query Report) (no date) EPIC. Available at: https://epic.org/documents/epic-v-nsd-section-702-query-report/ (Accessed: 13 October 2024). 

[4] See [3], Epic v. NSD (Section 702 Query Report) (no date) EPIC. Available at: https://epic.org/documents/epic-v-nsd-section-702-query-report/ (Accessed: 13 October 2024). 

[5] ACLU v. NSA - Foia lawsuit seeking court opinions addressing Section 702 surveillance (2024) American Civil Liberties Union. Available at: https://www.aclu.org/cases/aclu-v-nsa-foia-lawsuit-seeking-court-opinions-addressing-section-702-surveillance (Accessed: 13 October 2024). 

[6] (No date) The constitution of the United States of America. Available at: https://www.senate.gov/civics/resources/pdf/US_Constitution-Senate_Publication_103-21.pdf (Accessed: 14 October 2024). 

[8] Office of the Director of National Intelligence and Shields, R.T. (no date) FISA section 702, INTEL. Available at: https://www.intel.gov/foreign-intelligence-surveillance-act/1237-fisa-section-702 (Accessed: 14 October 2024). 

[9] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[10] See [8], Office of the Director of National Intelligence and Shields, R.T. (no date) FISA section 702, INTEL. Available at: https://www.intel.gov/foreign-intelligence-surveillance-act/1237-fisa-section-702 (Accessed: 14 October 2024). 

[11] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[12] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[13] See [8], Office of the Director of National Intelligence and Shields, R.T. (no date) FISA section 702, INTEL. Available at: https://www.intel.gov/foreign-intelligence-surveillance-act/1237-fisa-section-702 (Accessed: 14 October 2024). 

[14] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[15] Goitein, E. et al. (2024) FISA section 702: Civil rights abuses, Brennan Center for Justice. Available at: https://www.brennancenter.org/our-work/research-reports/fisa-section-702-civil-rights-abuses (Accessed: 14 October 2024). 

[16] See [15], Goitein, E. et al. (2024) FISA section 702: Civil rights abuses, Brennan Center for Justice. Available at: https://www.brennancenter.org/our-work/research-reports/fisa-section-702-civil-rights-abuses (Accessed: 14 October 2024). 

[20] (No date d) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/21/2021_FISC_Certification_Opinion.pdf (Accessed: 14 October 2024). 

[21] See [20], (No date d) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/21/2021_FISC_Certification_Opinion.pdf (Accessed: 14 October 2024). 

[22] See [7], (No date a) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/24th-Joint-Assessment-of-FISA-702-Compliance.pdf (Accessed: 14 October 2024). 

[28] See [15], Goitein, E. et al. (2024) FISA section 702: Civil rights abuses, Brennan Center for Justice. Available at: https://www.brennancenter.org/our-work/research-reports/fisa-section-702-civil-rights-abuses (Accessed: 14 October 2024). 

[29] Published by Ani Petrosyan and 10, O. (2024) Internet and social media users in the world 2024, Statista. Available at: https://www.statista.com/statistics/617136/digital-population-worldwide/ (Accessed: 14 October 2024). 

[30] (No date f) H.R.200 - 118th Congress (2023-2024): Fir act. Available at: https://www.congress.gov/bill/118th-congress/house-bill/200 (Accessed: 19 October 2024). 

[31] See [30], (No date f) H.R.200 - 118th Congress (2023-2024): Fir act. Available at: https://www.congress.gov/bill/118th-congress/house-bill/200 (Accessed: 19 October 2024). 

[32] (No date g) Government surveillance reform act one page summary. Available at: https://www.wyden.senate.gov/imo/media/doc/government_surveillance_reform_act_one_page_summary.pdf (Accessed: 19 October 2024). 

[33] See [32], (No date g) Government surveillance reform act one page summary. Available at: https://www.wyden.senate.gov/imo/media/doc/government_surveillance_reform_act_one_page_summary.pdf (Accessed: 19 October 2024). 

[34] See [32], (No date g) Government surveillance reform act one page summary. Available at: https://www.wyden.senate.gov/imo/media/doc/government_surveillance_reform_act_one_page_summary.pdf (Accessed: 19 October 2024). 

[35] See [32], (No date g) Government surveillance reform act one page summary. Available at: https://www.wyden.senate.gov/imo/media/doc/government_surveillance_reform_act_one_page_summary.pdf (Accessed: 19 October 2024). 

[36] See [7], (No date a) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/24th-Joint-Assessment-of-FISA-702-Compliance.pdf (Accessed: 14 October 2024). 

[37] See [7], (No date a) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/24th-Joint-Assessment-of-FISA-702-Compliance.pdf (Accessed: 14 October 2024). 

[41] See [20], (No date d) Intelligence. Available at: https://www.intelligence.gov/assets/documents/702%20Documents/declassified/21/2021_FISC_Certification_Opinion.pdf (Accessed: 14 October 2024). 

[42] See [30], (No date f) H.R.200 - 118th Congress (2023-2024): Fir act. Available at: https://www.congress.gov/bill/118th-congress/house-bill/200 (Accessed: 19 October 2024). 

[43] (No date h) National Defense Authorization Act for fiscal year 2024 ... Available at: https://www.congress.gov/bill/118th-congress/house-bill/2670 (Accessed: 19 October 2024). 

[44] (No date i Text - H.R.7888 - 118th Congress (2023-2024): Reforming ... Available at: https://www.congress.gov/bill/118th-congress/house-bill/7888/text (Accessed: 19 October 2024). 

[45] See [44], (No date i Text - H.R.7888 - 118th Congress (2023-2024): Reforming ... Available at: https://www.congress.gov/bill/118th-congress/house-bill/7888/text (Accessed: 19 October 2024). 

[46] See [1], Section 702 basics. Available at: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf (Accessed: 14 October 2024). 

[47] See [44], (No date i Text - H.R.7888 - 118th Congress (2023-2024): Reforming ... Available at: https://www.congress.gov/bill/118th-congress/house-bill/7888/text (Accessed: 19 October 2024). 

[48] See [15], Goitein, E. et al. (2024) FISA section 702: Civil rights abuses, Brennan Center for Justice. Available at: https://www.brennancenter.org/our-work/research-reports/fisa-section-702-civil-rights-abuses (Accessed: 14 October 2024). 


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