Digital Privacy and the War on Terror: FISA Section 702

By Bryce Klehm
Bryce Klehm is a junior at the University of Pennsylvania studying History.

​On December 31, 2017, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will be subject to congressional reauthorization. Section 702 allows the government to intercept various communications of foreigners located outside of the United States. It is mostly used by the National Security Agency (NSA) to gather signals intelligence on terrorist threats. The House Intelligence Committee claims it does not allow bulk collection targeting Americans. [1] The intelligence and law enforcement agencies may only use Section 702 with the approval of a Foreign Intelligence Surveillance Court. The House Intelligence Committee views its as crucial in tracking and finding various terrorists, including the recently deceased ISIS leader, Haji Iman.

The controversy regarding its renewal centers on a loophole in Section 702, which allows for “backdoor” searches of electronic communications data. Using the “backdoor search” loophole, various government agencies can query the data collected under FISA and gather information about US citizens “accidentally” swept in. [2] For example, if the FBI is looking for evidence on a domestic target, they can search the communication data collected by the NSA. If it contains communications by a U.S. target to a foreign target, the agency is free to use the data as evidence. Indeed, the Supreme Court has recently seen an increase in the number of cases pertaining to digital privacy and Section 702.

One case of interest is Mohamed Osaman Mohamud v. United States. The case has a direct relation to the “backdoor search loophole.” Mohamed Osaman Mohamud attempted to bomb a Christmas tree lighting ceremony in Portland, Oregon, but his plot was foiled by undercover FBI agents. [3] After he was convicted and sentenced, it was revealed that data collected under Section 702 was used in his trial. His lawyers argued to the Ninth Circuit of appeals that Section 702 violates the Fourth Amendment as well as Article III of the Constitution. The Ninth Circuit determined that the Fourth Amendment does not apply in this case as the collection is intended for overseas foreign nationals. They also found that it is not a violation of Article III because the Foreign Intelligence Surveillance Court has to approve the collection of any data. [4] The defendant is waiting for a ruling on a petition for certiorari before the Supreme Court.

The House Judiciary Committee has primary jurisdiction to renew FISA. Republican representative Bob Goodlatte of Virginia has proposed the U.S. Liberty Act to both preserve the essential elements of 702 and amend various transparency requirements. In a press conference on October 5, 2017, he stated that Section 702 is responsible for 25% of all National Security Agency surveillance, but he also acknowledged that it has been used to collect information on American citizens. [5] The U.S. Liberty Act will require a new framework of protections and various reporting and transparency requirements. But what are the essential elements of the U.S. Liberty Act? Do the requirements go far enough to prevent the allegedly unlawful search in Mohamed Osaman Mohamud v. United States?

The statutory provision meant to address the “backdoor search” loophole is a new warrant requirement for the FBI. [6] The FBI would be required to obtain a Foreign Intelligence Surveillance Court warrant when searching the unregulated data of Section 702 for “evidence of a crime.” It would also require the agencies to report the statistics pertaining to the number of searches made. Both of these requirements would most likely not have prevented the issues present in Mohamed Osaman Mohamud v. United States.

Various legal scholars and lawyers argue the U.S. Liberty Act is overkill. A former lawyer for the Office of the General Counsel at the National Security Agency, George Croner, recently wrote an article rebuking the Liberty Act as legislative redundancy. [7] He sees the new reporting requirements within Section 702 as unnecessary and claims that Section 702 is “already among the most heavily regulated, carefully scrutinized activities undertaken by components of the U.S. government.” Croner views the increased transparency requirements as an unnecessary burden, and he draws an interesting connection to financial regulation. He sees hypocrisy present in the Liberty Act due to congressional focus on efficient law enforcement applicable to the financial services industry while the new regulations imposed by the Liberty Act could further impede intelligence collection by the FBI and other agencies. [8]

While Section 702 will most likely be renewed this year, it highlights a broader legal theme associated with the war on terror. How should the United States confront enemy combatants while protecting the rights ensured by the Constitution?

[1] "U.S. House of Representatives Permanent Select Committee on INTELLIGENCE FISA Section 702 Debate Important Facts about FISA Section 702." U.S. House of Representatives Permanent Select Committee on INTELLIGENCE. Accessed November 6, 2017. https://intelligence.house.gov/uploadedfiles/2017_section_702_fact_sheet.pdf.
[2] "Center for Democracy & Technology | Keeping the Internet Open, Innovative and Free." Section 702 of FISA | Center for Democracy & Technology. Accessed November 6, 2017. https://cdt.org/issue/security-surveillance/section-702-of-fisa/.
[3] UNITED STATES OF AMERICA v. MOHAMED OSMAN MOHAMUD (United States Court of Appeals, Ninth Circuit December 5, 2016), Find Law.
[4] Ibid.
[5] Foreign Intelligence Surveillance Act Renewal. Performed by House Judiciary Committee and Chairman Bob Goodlatte. C-Span. October 5, 2017. Accessed November 6, 2017. https://www.c-span.org/video/?435223-1/house-judiciary-committee-reaches-agreement-fisa-renewal.
[6] Croner, George W. "What's to Be Found in the USA Liberty Act of 2017." Foreign Policy Research Institute. October 20, 2017. Accessed November 6, 2017. https://www.fpri.org/article/2017/10/whats-found-usa-liberty-act-2017/.
[7] Ibid.
[8] Ibid.
Photo Credit: Flickr User sfer 

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