FISA Section 702, Is The US Government Monitoring You?

The tragic event of September 11th, 2001, left an indelible mark on the United States. In the aftermath of this horrific event, the demand for justice was discernable among US citizens. They sought accountability from those directly responsible for planning and facilitating this devastating act.

In response, the intelligence community was tasked with gathering and providing information on these individuals. The main resource at their disposal was the Patriot Act. Just six weeks after 9/11, this controversial piece of legislation significantly revised US surveillance laws and expanded the government’s ability to surveil its own citizens.

The Patriot Act allowed U.S. intelligence agencies to monitor their citizens under the pretense of safeguarding national security, and all of this was conducted without warrants, possibly posing potential challenges against the Fourth Amendment‘s protection against unreasonable search and seizure. The Patriot Act was an expansion in power for the Foreign Intelligence Surveillance Act or FISA, which was initially intended to provide a legal framework for electronic surveillance to collect foreign intelligence information.

Even before the enactment of the Patriot Act in October 2001, FISA was established in 1978. FISA was Congress’s response to several incidents where government agencies had infringed upon U.S. citizens’ privacy rights while investigating national security threats.

Under FISA, no U.S. person (U.S. citizen or a person with a green card) could be the primary target of electronic surveillance. However, the vagueness of the term “primary target” allows data of these individuals to be obtained via electronic surveillance if they communicate with someone who is the primary target of a FISA investigation. While this may seem reasonable, one might assume that anyone targeted by FISA surveillance is a known foreign agent, spy, or terrorist, but that assumption is not always accurate.

Is Your Internal Communication Being Monitored By The FBI?

Do you have a friend or colleague who resides and works abroad? One who is neither a U.S. citizen nor a green card holder? If you have ever exchanged any emails, texts, or phone calls with them, it’s possible that the U.S. government may have recorded data from those interactions without your knowledge or legal warrant.

The Center for Democracy & Technology (CDT) reveals that under Section 702 of FISA, surveillance targets don’t necessarily have to be suspected of terrorism or espionage. To justify the use of Section 702 for electronic surveillance, the significant aim of the operation should be to gather foreign intelligence information concerning a non-U.S. person located outside of the United States. Interestingly, the reasons for such surveillance can be completely unrelated to any form of criminal activity or espionage.

While the violation of your Fourth Amendment rights may be accidental, the information stored in databases can be accessible by agencies like the NSA, CIA, and FBI for criminal investigations, including domestic ones. Thus, any information obtained without a warrant through Section 702 can be used against you in court. This process, known as a backdoor search, allows investigators to bypass the Fourth Amendment’s warrant requirement when seeking information about U.S. citizens or green card holders in the Section 702 database.

To protect U.S. persons’ rights, the CIA and NSA require a written statement to be made before conducting a search of the Section 702 information database, explaining why their search pertaining to a U.S. person is likely to turn up information regarding foreign intelligence. However, the FBI does not have this restriction in place, according to CDT.

The Future of Surveillance: Will The Sun Set On Section 702?

Section 702 of FISA includes a sunset provision, meaning it requires congressional reapproval after a set period to continue. According to Cornell Law School, sunset provisions were introduced in the 1970s to eliminate redundancy and increase efficiency by compelling Congress to review policies such as Section 702 regularly. While reauthorized twice since its 2008 inception, in 2012 and 2017, Section 702 must receive approval again by December 31, 2023, or it will cease to exist. This impending deadline may present challenges for the U.S. intelligence community.

The American Civil Liberties Union (ACLU) has called for Congress to either reform Section 702 or allow the sunset provision to take effect. Similarly, Human Rights Watch opposes the reauthorization of Section 702, stating it violates international human rights laws. They argue Section 702’s lack of requirement for warrants and its lack of a checks-and-balances system or direct overnight are two violations that are seen as invasive and overly permissive, allowing for the violation of constitutional rights and possible future abuses of power.

But what about Congress? In 2008, 2012, and 2017 a majority of Republicans were on board for far-reaching surveillance in order to keep America safe from foreign threats, but in 2023, there was a level of hesitancy.

Representative Mike Turner, a Republican for Ohio’s 10th congressional district and chairman of the House Intelligence Committee, has declared a need for Section 207 reform and went as far as to form a committee working group to discuss and draft possible reforms. Elizabeth Goitein of the Brennan Center for Justice is hopeful that reforms will be passed this time around, as they have previously failed, due to this being “a once in a generation opportunity. . . because there is broad bipartisan support.”

How Important Is Section 702 to U.S. Intelligence?

As lawmakers grow concerned over the ethics of Section 702, the intelligence community believes without it, the United States would be in danger. According to Attorney General Merrick Garland during a Senate hearing, the majority of his daily briefing on possible threats to the country comes from information collected under Section 702. He claimed, “[w]e would be intentionally blinding ourselves to extraordinary danger in my view,” which highlights a major concern in the debate on government surveillance.

The Director of the CIA, William Burns, noted that Section 702 has helped fight drug trafficking operations and threats posed by the Mexican cartels while the Director of National Intelligence, Avril Haines credited the FISA provision as aiding in preventing cyberattacks against the government, the transfer of weapons of mass destruction to hostile actors, and more.

This raises critical questions: Should we accept a trade-off between national security and privacy? Should U.S. citizens tolerate incidental conversation collection, even at the cost of constitutional rights? Ultimately, the decision rests with Congress.

Safeguarding Your Data

Personal Identifiable Information (PII) is any data used to identify an individual, like your social security number. When PII is compromised via data breaches or phishing scams, it’s crucial to understand the value of protecting this sensitive information and know what to ask companies before sharing it.

Important questions to ask include: What is your disaster recovery plan in the case of a data breach? Will my data be stored in the cloud? What tools does your company use to protect my data? Businesses often use redaction to safeguard data, which anonymizes sensitive information from videos, audio files, documents, and images. Among the various redaction software options available in the market, CaseGuard Studio stands out as a top choice.

CaseGuard Studio is an on-premise, all-in-one redaction software with powerful AI redaction capabilities to make the process of redacting sensitive information intuitive and efficient. The on-premise nature of the software allows for complete control over the files added to CaseGuard Studio; nothing will ever be uploaded to the cloud accidentally, keeping your data safer. With just a few clicks, PII can be permanently scrubbed from all forms of files to protect your privacy.

While you may not be able to stop the government from recording your conversations with co-workers and loved ones overseas, you can dictate where your PII goes and ensure those entities take the utmost measures to safeguard your privacy.