By Victoria Garcia
The Foreign Intelligence Surveillance Act (“FISA”) 702 Program is an ongoing surveillance program that collects information about foreign nationals who are abroad and have connections to terrorist organizations.[1] Currently, the 702 Program is set to expire at the end of 2017. While Congress will likely reauthorize the 702 Program, debates about including a sunset provision to protect U.S. citizens from unlawful surveillance create uncertainty within the intelligence community regarding whether 702 Program oversight will remain unchanged.
In 2013, the FISA 702 Program was one of two government surveillance programs that Edward Snowden revealed.[2] Authorized by section 702 of FISA, the 702 Program collected electronic phone and email communications from individuals “reasonably believed to be non-U.S. persons located outside the United States.”[3] After Snowden’s disclosures, multiple investigations were launched to understand the programs’ scopes and legal foundations.[4] After re-evaluating the 702 Program, the NSA decided to end “upstream” collection (communication that is “about” a foreign target), but chose to continue “to” and “from” collection (directly “to” or “from” the foreign target).[5]
After intense evaluations, the 702 Program continues; however, the 702 Program’s authority will sunset at the end of the year if Congress fails to reauthorize, which consequently, would terminate the 702 Program.[6] While Congress will likely pass the FISA Amendments Act, the question about whether Congress will pass a “clean authorization” is still uncertain.[7] Controversial sections of the 702 Program under review include the U.S. Government working with international technology companies to gather information, and concerns that the intelligence community is “unmasking” the identities of U.S. citizens for political purposes.[8] The most contentious aspect, however, is the sunset provision. The sunset provision codifies Congress’s authority to review the 702 Program, but there is a debate about whether reauthorization should include Congressional oversight.[9]
Although Congress has the power to draft a statute with or without a sunset provision, dismissing a sunset provision could jeopardize Congress’s authority to check the Executive Branch from sweeping U.S. citizens’ information into the collection.[10] Alternatively, the courts already determined that the 702 Program is constitutional even if U.S. citizen communications are collected.[11] In United States v. Mohamud, the U.S. Circuit Court of Appeals for the Ninth Circuit determined that 702 Program’s surveillance does not trigger the warrant requirement under the Fourth Amendment because U.S. citizens’ information was collected incidentally.[12] The Court discussed that even if the 702 Program’s surveillance triggered the warrant requirement, the foreign intelligence exception would still authorize the collection.[13] The Court affirmed the 702 Program’s authority to work outside the Fourth Amendment.
While society may benefit from Congress periodically reviewing the scope of the Program, such review is not required under law.[14] Members of Congress continue to emphasize that it is imperative for them to know how many citizens’ information is swept into the collection so that they can protect their constituents from unwarranted surveillance, even though current precedent authorizes incidental collection.[15] Therefore, if senators are concerned about U.S. citizens’ information being swept up into 702 collections, a sunset provision, though beneficial, would not provide their desired protections.[16] Congress’s concerns can only be properly addressed by including a provision that explicitly states that a warrant is required when U.S. citizens are involved. Such a provision would provide U.S. citizens, whose information is incidentally swept up, with Fourth Amendment constitutional protections.
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[1] Privacy & Civil Liberties Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 1 (Jan. 23, 2014), https://www.pclob.gov/library/215-report_on_the_telephone_records_program.pdf (providing an overview of the Snowden disclosures, as they related to the 215 and 702 Programs).
[2] Id.; David Forscey, Predicting Support for Section 702 in the Senate, Lawfare (July 21, 2017, 9:00 AM), https://www.lawfareblog.com/predicting-support-section-702-senate.
[3] Privacy & Civil Liberties Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 1 (Jan. 23, 2014), https://www.pclob.gov/library/215-report_on_the_telephone_records_program.pdf (providing an overview of the Snowden disclosures, as they related to the 215 and 702 Programs).
[4] ODNI Announces Transition to New Telephone Metadata Program, IC On the Record (Nov. 27, 2015), https://icontherecord.tumblr.com/post/134069716908/odni-announces-transition-to-new-telephone; see Cody M. Poplin, NSA Ends Bulk Collection of Telephony Metadata under Section 215, Lawfare (Nov. 30, 2015, 3:47 PM), https://www.lawfareblog.com/nsa-ends-bulk-collection-telephony-metadata-under-section-215.
[5] See NSA Stops Certain Section 702 “Upstream” Activities, NSA (Apr. 28, 2017), https://www.nsa.gov/news-features/press-room/statements/2017-04-28-702-statement.shtml (announcing that NSA is ending certain “upstream” collection, but that the 702 Program is still ongoing).
[6] Forscey, supra note 2.
[7] Id.
[8] See id. (summarizing issues relating to the 702 Program).
[9] See Forscey, supra note 2 (analyzing previous Congress members’ voting records regarding surveillance program).
[10] See also Feinstein: Section 702 Reauthorization Important, Needs Changes, Diane Feinstein (June 9, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=01BB10C6-DEBA-4584-A391-C7015FA947E9 (expressing her support for a Sunset Provision).
[11] See United States v. Mohamud, 843 F.3d 420, 439 (9th Cir. 2016), https://www.leagle.com/decision/infco20161205090 (holding that incidental U.S. communications does not trigger the Fourth Amendment because it was not the intended target).
[12] Office of the Director of National Intelligence, The FISA Amendments Act: Q & A 8 (Apr. 18, 2017), https://www.dni.gov/files/icotr/FISA%20Amendments%20Act%20QA%20for%20Publication.pdf.
[13] Id.
[14] See also Feinstein, supra note 10 (supporting various parts of the 702 Program while stating that the Sunset Provision is crucial for providing sufficient oversight).
[15] See Mohamud, 843 F.3d at 439 (finding that incidental collection in the 702 Program does not trigger the Fourth Amendment); see also Sean D. Carberry, Officials press Congress to reauthorize spy powers, FCW (June 28, 2017), https://fcw.com/articles/2017/06/28/702-senate-graham-unmask.aspx (summarizing Senate Judiciary hearing where senators asked if the FBI needed to obtain a warrant to search for evidence for criminal investigations).
[16] See Carberry, supra note 15 (recalling the discussion between Senator Linsey Graham and Acting Attorney General for the Office of the Director of National Intelligence, Bradley Booker, where Graham became heated about an information request his office requested from ODNI about whether ODNI incidentally collected his communication with foreign nationals through the 702 Program).