The House Intelligence Committee is currently contemplating a Plan B as they grapple with the deadline surrounding the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA). In the face of the impending year-end deadline, lawmakers may resort to a temporary extension of the current regulations, despite the privacy concerns and the intrusive surveillance issues linked to Section 702.
Related: FBI used controversial FISA warrants to spy on over 3 million Americans
Section 702 of the Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978 and amended by the FISA Amendments Act of 2008, allows the United States government to collect and analyze communications of foreign nationals living outside the United States for foreign intelligence purposes. However, the law has been used to spy on Americans countless times.
The main points of Section 702 include:
Targeting Non-US Persons: Section 702 authorizes the targeting of communications of non-US persons located outside the United States for foreign intelligence purposes, which can include gathering information on foreign affairs or national security issues.
No Warrant Required: The government does not need a warrant to conduct surveillance under Section 702 on individuals who are not American citizens or permanent residents and who are believed to be outside the U.S. at the time of collection.
Use of US Service Providers: It permits the government to compel US electronic communication service providers, such as internet service providers and email services, to facilitate the surveillance.
Upstream Collection: This involves capturing communications as they travel across internet backbones, which can potentially intercept the communications of individuals not specifically targeted by the surveillance.
Minimization Procedures: The act requires the use of “minimization procedures” intended to protect the incidental collection of US persons’ information, but these are often criticized as insufficient or lacking in robustness.
Oversight: Section 702 includes oversight by the Foreign Intelligence Surveillance Court (FISC), Congress, and other agencies, but details of the surveillance programs under Section 702 are often classified, which limits public understanding and the ability to challenge the programs’ legality.
The privacy concerns associated with Section 702 revolve around several key issues:
Incidental Collection: While targeting foreign nationals, communications of US citizens and residents can be incidentally collected if they are in contact with the foreign target. This can occur without a warrant or probable cause, which raises concerns about privacy and due process.
“Backdoor” Searches: Authorities may use Section 702 to conduct what are effectively warrantless searches of the data collected for domestic criminal investigations, which may involve US persons’ information.
Broad Scope of Foreign Intelligence: The definition of “foreign intelligence information” can be broad, leading to the collection of vast amounts of data not strictly necessary for national security.
Lack of Transparency: Due to the classified nature of national security surveillance, there is a significant lack of transparency around what information is collected, how it is used, and how often US persons’ data is incidentally collected.
Loose Minimization Procedures: Critics argue that the minimization procedures designed to protect Americans’ privacy are insufficient and allow for the retention and use of non-public information about US persons for extended periods.
Upstream Collection: The ability to capture communications as they transit through the internet infrastructure can lead to the acquisition of large volumes of information, which likely includes domestic communications, raising the potential for widespread surveillance.
The provisions of Section 702 are identified by the Office of the Director of National Intelligence as enabling US government intelligence agencies to stealthily monitor non-Americans outside the United States’ boundaries. The method used involves leveraging the services of “electronic communication service providers” to help gather foreign intelligence information. These activities, controversially, do not require a warrant for authorization.
However, undiscussed are the widespread anxieties about privacy implications and the potentially overreaching surveillance innate to this Act. The President’s Intelligence Advisory Board, in early July, notably suggested that the Congress should abstain from renewing the controversial section, a strong indication of the disquiet surrounding this law.
The Board emphatically highlighted that “Unfortunately, complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities, specifically US person queries.” This stern criticism underlines the concerns tied to overreaching surveillance and lack of proper oversight.
Representative Jim Himes, a member of the House Intelligence Committee, confirmed the frenzied rush to devise a plan that could salvage the situation.
Unraveling the “Plan B,” he acknowledged that there exists a line-up of short-term contingency plans around Section 702 to prevent its expiry. He told The Hill, “We’ve just seen so much chaos on the floor. Even in the best of times, obviously, 702 is a heavy lift. Pretty much all of the Plan Bs involve a temporary extension because we just – we cannot allow this authority to expire.”
However, while the delay may focus prominently on short-term fixes, the House Intelligence Committee’s focus isn’t set on them, as stated by Jeff Naft, its spokesperson. These grim developments underscore the privacy debates while also questioning the unchecked power of surveillance in the digital era. They bring to the forefront the urgent need for a sustainable decision based on privacy rights and effective legislation that safeguards against unrestricted surveillance.
