A Brief History of Section 702
By Laurence Edwards
Introduction:
The Foreign Intelligence Surveillance Act, more simply known as FISA, was established in 1978 with the intention of expanding foreign surveillance under federal oversight. In 2008 FISA underwent a series of amendments; within these amendments lies FISA Section 702. Spanning nearly 11 pages, Section 702 seeks to expand foreign surveillance and outlines procedures for intelligence gathering. However, in recent years, large quantities of evidence have emerged alleging that federal agencies have used Section 702 as legal justification for indiscriminate surveillance of United States Citizens.
Throughout this article, the term dragnet surveillance is used. Dragnet surveillance is a term defined as a coordinated surveillance effort with the intention of stopping criminal activity. Although dragnet surveillance can be extremely beneficial, and arguably necessary, under specific circumstances, such as search party events or roadblocks, many have argued that this style of surveillance becomes problematic when applied en masse through the unchecked means of modern technology. In the case of national counterterrorism, the agencies’ dragnets expand to such a degree that US citizens are often being monitored with the purpose of preventing terrorism.
This article was researched in conjunction with AK Media, a partner organization to Paradigm Intel. AKM originally conceived the project, and performed the sourcing for the Snowden Files, explanations of technical concepts and calculations, and visuals on statistics of the FISA courts. AKM will be releasing a production on broader issues related to FISA and government surveillance. Thank you to AK Media for working on this project.
History of Section 702:
In 1978, FISA was enacted to provide judicial oversight into matters of foreign surveillance, largely in secret. The pages of FISA contain procedures for surveillance and evidence gathering as well as the outline of the Foreign Intelligence Surveillance Court, or FISC. FISC was established to provide much-needed checks and balances on government surveillance via a court system, however, FISC has been seen to have serious flaws.
In 2008, informed by the 9/11 terror attacks, a FISA amendment bill was enacted containing FISA Section 702. Although Section 702 explicitly outlines restrictions for targeting Americans, it is often used as legal justification for mass domestic surveillance programs.
Evidence of Dragnet Surveillance:
In 2013, Edward Snowden leaked hundreds of NSA documents to various journalists. These documents detailed several NSA surveillance programs, authorized under FISA and similar acts, that practiced “upstream” and “downstream” surveillance, with downstream being an unofficial term referring to dragnet surveillance via sourcing large quantities of information from corporate entities. Upstream is an NSA term that refers to the direct tapping of the internet and telecommunication systems.
An example of an Downstream project authorized by Section 702 is PRISM. PRISM is a project that collected mass amounts of user data willingly provided by a series of Internet and telecommunication corporations. PRISM used “The Unified Targeting Tool” to sort and query this information en masse.
Credit: The Washington Post
Alternatively an example of an Upstream project is Fairview. Fairview was a project that operated under a variety of legal authorities, mainly Section 215 of the Patriot Act and FISA Section 702. Fairview operated by copying metadata collected by machines installed by AT&T. According to the New York Times, by 2011, AT&T had begun handing over 1.1 billion domestic cell phone records daily without the knowledge of consumers.
As detailed in FISA Section 103, the FISC operated on a system where three separate courts must all reject any monitoring request in succession, whereas any of the three courts can grant approval to any FISA monitoring application. Utilizing raw data from Electronic Privacy Information Center (EPIC), stating that from 1979 to 2022, 42,938 applications were accepted, 2,068 applications were modified, and only 322 applications were denied AKM was able to calculate a 0.727% rejection rate.
Credit: AK Media
In July 2023, PIAB, the President’s Intelligence Advisory Board, and IOB, the Intelligence Oversight Board, released an official review of FISA Section 702. This review states the following: “The fact that the FBI is involved in the Section 702 program ensures that there is no “gap” between foreign-focused collection and domestic disruption efforts and that there is no “wall” between its law enforcement and intelligence functions.” This is a clear illustration of the issue the public took with Section 702 and its uses. The law is written in such a way that it can be used to give authority to domestic projects, even though it is explicitly written within Section 702 that it cannot be used to target persons reasonably believed to be located within the United States.
Conclusion:
There is an extensive history of FISA Section 702 and its various uses. However, despite this, the topic has gained minimal public attention. Since the initial Snowden leaks, little public change has been made. Although the Patriot Act expired in 2020, dragnet surveillance is still widespread, and reliable information on it is far from in the mainstream.
Two bills have been proposed as modifications to Section 702, which, until April 2024, is still in full effect. Although the consensus seems clear that change is needed, conflict as to what those changes are is still ongoing. The unfortunate truth is if Congress does not have a clear understanding of what changes need to occur, the change needed to protect the people’s right to privacy may not happen at all.
Due to a consistent lack of discussion about this topic, public information on Section 702 and laws like it is not in the public eye. Until there is an informed population, there cannot be an expectation of the public getting the change they want and deserve.
Credits:
Writers:
Laurence Edwards, Paradigm Board Member
Editors:
Laurence Edwards, Paradigm Board Member
AK, CEO of AK Media
Aaron C.Z. Arnold, Paradigm Board Member
Olivia Mott, Paradigm Board Member
Research:
Laurence Edwards, Paradigm Board Member
AK, CEO of AK Media
For any questions or inquiries, please contact Paradigm Intel.