Section 702 and the Collection of International Telephone and Internet Content

By Donohue, Laura K. | Harvard Journal of Law & Public Policy, Winter 2015 | Go to article overview

Section 702 and the Collection of International Telephone and Internet Content


Donohue, Laura K., Harvard Journal of Law & Public Policy


II. PROGRAMMATIC COLLECTION (143)

Almost immediately after passage of the FAA, members of Congress, scholars, and others began criticizing Section 702 because of the potential for the government to use the authorities to engage in programmatic surveillance. (144)

In 2009 prominent national security law Professor William Banks explained, "the FAA targets do not have to be suspected of being an agent of a foreign power or, for that matter, they do not have to be suspected of terrorism or any national security offense, so long as the collection of foreign intelligence is a significant purpose of the surveillance." (145) Surveillance could be directed at a person, organization, e-mail address, or even "an entire ISP or area code." (146) He noted, "the surveillance permitted under the FAA does not require that the Government identify a particular known facility where the intercepted communications occur." (147) These provisions represented a sea change from how FISA had previously worked (albeit introducing, for the first time, statutory restrictions in an area previously governed by Executive Order). U.S. persons' communications now could be incidentally collected under the statute, on a large scale, without many of the protections in traditional FISA. (148)

Banks presciently pointed out the most likely way in which the new authorities would be used:

   Although details of the implementation of the program
   ... are not known, a best guess is the Government uses
   a broad vacuum cleaner-like first stage of collection, focusing
   on transactional data, where wholesale interception occurs
   following the development and implementation of filtering
   criteria. Then the NSA engages in a more
   particularized collection of content after analyzing mined
   data ... [A]ccidental or incidental acquisition of U.S. persons
   inside the United States [will] surely occur[], especially in
   light of the difficulty of ascertaining a target's location. (149)

For Professor Banks, part of the problem was that the nature of international information flows meant that it would be impossible to tell if an individual is located overseas or within domestic bounds. (150)

Banks was not the only one to question the implementation of Section 702. Cases began to appear, raising facial and as applied constitutional challenges. Problems characteristic of relying on Article III courts in the context of surveillance came to the fore. In Clapper v. Amnesty International, plaintiffs alleged that Section 702 violated the targets' Fourth Amendment rights because it allowed for the acquisition of international communications absent an individualized court order supported by probable cause. (151) The Supreme Court dismissed the suit for lack of standing--that is, the absence of any concrete injury. It did not reach the merits of the Fourth Amendment claim. (152)

The FAA was set to expire at the end of 2012. By early February, James Clapper, the Director of National Intelligence, and Attorney General Eric Holder had informed Congressional leaders that reauthorization of the FAA was "the top legislative priority of the national Intelligence Community." (153) The Administration credited the FAA with the production of "significant intelligence that is vital to protect the nation against international terrorism and other threats." (154) Offering classified briefings and attaching an unclassified annex, Clapper and Holder wrote, "We are always considering whether there are changes that could be made to improve the law in a manner consistent with the privacy and civil liberties interests of Americans." (155) But their "first priority" was "reauthorization of these authorities in their current form." (156)

The NSA's inability to provide the number of American citizens' communications intercepted under the act became a matter of public debate. In May 2012 Senators Ron Wyden and Mark Udall raised concerns about what they referred to as a "back door" in the statute. …

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