Drawing a Line on Mass Surveillance: How Congress Must Reform Section 702

On Monday, members of the House Intelligence Committee held an open hearing into Russian involvement in the 2016 presidential election that included a discussion of whether the U.S. government improperly surveilled officials or associates of any campaign. During that hearing, members of both parties favorably referred to Section 702 of the FISA Amendments Act, a sweeping piece of intelligence legislation that is up for reauthorization later this year and, in our view, permits significant offenses against Americans’ civil liberties. Section 702 authorizes two truly alarming efforts that must be reformed or ended.

The first program is Prism, which produces the majority of information collected under Section 702, and involves ordering companies to search all information in their possession and copy whatever data is tied to something intelligence agencies call ‘selectors.’ A selector is like a keyword in a search engine; they can be very broad and are connected to enormous amounts of information, all of which is provided to the government. A Washington Post analysis found 9 out of 10 people whose account information was collected were not the “target” of an intelligence investigation. Half were American. For Prism to work, the government searches and copies emails and other sensitive information, including information traditionally protected by the Fourth Amendment’s probable cause standard.

The second program is Upstream, which collects information from the Internet’s ‘backbone,’ which includes the undersea cables linking continents and thereby enabling the global connectivity the Internet depends on. By compelling the entities that control that infrastructure (like AT&T) to scan or otherwise tap the information flowing through them — again, based on certain selectors — intelligence agencies collect information in real-time. This scanning affects all information traveling across the cables, with no regard for privacy or sensitivity. Information tied to these selectors, including our most intimate communications, is turned over to the government and stored for years (or indefinitely).

Given the many problems with Section 702, any legislation that does not include the following five reforms would raise grave concerns, prompting grassroots organizations like ours to oppose the measure. In the most recent fight over surveillance, overreach by surveillance hardliners led to hundreds of thousands of people contacting Congress to demand reform and the temporary expiration of three surveillance provisions.

1. A new sunset: Should Congress choose to reauthorize Section 702, any reauthorization must include a sunset, a date beyond which government intelligence agencies cannot use the authorities granted under Section 702 without passage of a new law. Sunsets are the primary means for revisiting and reforming controversial laws, and we want to make sure that Congress looks at this law again in the future.

2. Close the backdoor loophole: Warrantless ‘backdoor’ searches of Americans’ information must end. A backdoor search, which the government calls a “U.S. person query,” is when an intelligence agency deliberately searches through its massive databases with selectors for known US persons. In other words, after searching and copying billions of private communications, something allowed by law only in the interest of targeting non-Americans, the government searches through that huge store for information they know belongs to an American. We know these searches happen thousands of times per year — the total number of backdoor searches isn’t publicly known — and they are routinely used when the FBI starts an investigation into a U.S. person. Backdoor searches fly in the face of both the constitutional rights of Americans and the clear Congressional intent to permit foreign intelligence collection under Section 702. The House of Representatives overwhelmingly has supported reforming this provision in the past, and a fix must finally be incorporated into any law reauthorizing Section 702.

3. Limit ‘about’ collection: Currently, the government not only scans for communications to or from a target, but also for communications that are ‘about’ a target. For example, when the government searches for an email address, it doesn’t just look to see who sent and received the email, but whether the email address is included in the body of a message. In other words, the government is searching through the contents of communications. No programmatic surveillance should be allowed to operate this way because it requires searching en masse through the communications of innocent people suspected of no wrongdoing. A surveillance apparatus that reviews people’s communications without evidence of wrongdoing is extremely dangerous. Historically, mass surveillance has been applied disproportionately against communities of color and people outside the political mainstream. If the government’s past actions are to be any indicator, it is likely to leak into investigations of no relevance to national security. It also results in erroneous arrests.

4. Improve notice requirements and ban parallel construction: Section 702 is an extraordinary surveillance tool, and it must not be allowed to trample the constitutional rights of defendants and the authority of the courts. Unfortunately, we have seen disturbing examples where prosecutors failed to provide notice to defendants about the information being used to prosecute them. We are deeply concerned about possible evidence laundering designed to conceal intelligence collection practices through what’s known as ‘parallel construction.’

Parallel construction may occur in this context when the government uses information it collected for intelligence purposes for criminal prosecutions. This is problematic because the standard the government must meet to get the green light to collect information for intelligence purposes is lower than what the constitution allows in the criminal context. To get around the constitution and to hide collection methods, the government tips off investigators or prosecutors using the intelligence-derived evidence, and then the investigators recreate the investigation using information that could survive in court. The use of this ruse undermines the constitutionally-recognized right of a criminal defendant to test the basis of surveillance and the veracity of information used against them. These critical safeguards for justice cannot function when defendants do not know the original source of the investigation and the information used against them.

5. Disclose secret interpretation of law: Secret interpretations of law have no place in the U.S., yet the Justice Department’s Office of Legal Counsel secretly interprets law for the Executive branch, at times producing indefensible guidance that vitiates the statutes enacted by Congress. For instance, when the Bush administration wanted to torture detainees, it needed to avoid U.S. law and the Geneva Conventions. Cue John Yoo, an attorney for the Office of Legal Counsel, who wrote a memo okaying torture. While his analysis was not up to legal snuff, and was eventually withdrawn, and Yoo was described by DOJ as having “committed intentional professional misconduct,” the opinions issued by OLC kept Bush administration officials safe from prosecution and allowed torture to go ahead — all blessed by a secret memo. For an issue as critical and potentially dangerous as mass surveillance, a bill reauthorizing Section 702 must be safeguarded against any such abuse. We need to know the administration has not secretly reinterpreted the law and that the will of Congress has been faithfully implemented.

There are many other reforms to Section 702 that Congress should consider, and which we would wholeheartedly support including in reform legislation.

For example, we would support:

  • Limiting the purposes for which Section 702 can be used to collect information — especially ‘foreign affairs’ purposes that lie beyond counterterrorism.
  • Ensuring that U.S. persons can sue the government when it oversteps its surveillance authority.
  • Allowing companies to report on their compelled and voluntary cooperation with the government in greater detail.
  • Requiring the government to destroy data and limit retention of information, especially for U.S. person data.
  • Requiring the government to show that its targets are agents of a foreign power.
  • Requiring more government disclose about collection, especially with regards to the FBI, which is exempt from some of USA Freedom Act’s transparency requirements.
  • Strictly limiting the circumstances under which 702 information can be used after it is collected.

First published on Just Security.