Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act (FISA)
Released: 2016-04-13T00:00:00

B eginning in late 2005, the New York Times reported that the federal government had "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people in the United States without warrants." Subsequently, President George W. Bush acknowledged that, after the attacks of September 11, 2001, he had authorized the National Security Agency to conduct a Terrorist Surveillance Program (TSP) to "intercept int ernational communications into and out of the United States" by "persons linked to al Qaeda or related terrorist organizations" based upon his asserted "constitutional authority to conduct warrantless wartime electronic surveillance of the enemy." Now discontinued, the TSP appears to have been active from shortly after September 11, 2001, to January 2007.

After the TSP activities were concluded in 2007, Congress enacted the Protect America Act (PAA, P.L. 110-55 ), which established a mechanism for the acquisition, via a joint certification by the Director of National Intelligence (DNI) and the Attorney General (AG), but without an individualized court order, of foreign intelligence information concerning a person reasonably believed to be outside the United States. This temporary authority ultimately expired after approximately six months, on February 16, 2008. Several months later, Congress enacted the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which created separate procedures for targeting non-U.S. persons and U.S. persons reasonably believed to be outside the United States under a new Title VII of FISA. Title VII of FISA was reauthorized in late 2012; this authority now sunsets on December 31, 2017.

Significant details about the use and implementation of the Section 702 of Title VII, which provides procedures for targeting non-U.S. persons, became known to the public following reports in the media beginning in summer 2013. According to a partially declassified 2011 opinion from the Foreign Intelligence Surveillance Court (FISC), the National Security Agency (NSA) collected 250 million Internet communications per year under Section 702. Of these communications, 91% were acquired "directly from Internet Service Providers," using a mechanism referred to as "PRISM collection." The other 9% were acquired through what NSA calls "upstream collection," meaning acquisition while Internet traffic is in transit from one unspecified location to another.

Scope of Acquisitions

Like its predecessor in the PAA, Section 702 permits the AG and the DNI to jointly authorize targeting of persons reasonably believed to be located outside the United States, but is limited to targeting non-U.S. persons. Once authorized, such acquisitions may last for periods of up to one year. Under Subsection 702(b) of FISA, such an acquisition is also subject to several limitations. Specifically, an acquisition

may not intentionally target any person known at the time of acquisition to be located in the United States; may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; may not intentionally target a U.S. person reasonably believed to be located outside the United States; may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and must be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States.

Acquisitions under Section 702 are also geared towards electronic communications or electronically stored information. This is because the certification supporting the acquisition, discussed in the next section, requires the AG and DNI to attest that, among other things, the acquisition involves obtaining information from or with the assistance of an electronic communication service provider. This would appear to encompass acquisitions using methods such as wiretaps or intercepting digital communications, but may also include accessing stored communications or other data. Such a conclusion is also bolstered by the fact that the minimization procedures required to be developed under Section 702 reference the minimization standards applicable to physical searches under Title III of FISA.

Certification Procedure

Section 702 requires the joint AG/DNI authorization to be predicated on either the existence of a court order approving of a joint certification submitted by the AG and DNI, or a determination by the two officials that exigent circumstances exist.

The certification is not required to identify the individuals at whom such acquisitions would be directed. Rather, the certification must attest, in part, that targeting procedures are in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the FISC, that are reasonably designed to ensure that an acquisition is limited to targeting persons reasonably believed to be located outside the United States, and to prevent the intentional acquisition of any communication where the sender and all intended recipients are known at the time of the acquisition to be located in the United States. The applicable targeting and minimization procedures are subject to judicial review by the FISC, but the court is not required to look beyond the assertions made in the certification.

Generally, if the certification and targeting and minimization procedures meet the statutory requirements and are consistent with the Fourth Amendment, a FISC order approving them will be issued prior to implementation of the acquisition of the communications at issue. If the FISC finds deficiencies in the certification, targeting procedures, or minimization procedures, the court will issue an order directing the government to, at the government's election and to the extent required by the court's order, correct any such deficiency within 30 days, or cease the implementation of the authorization for which the certification was submitted.

Exigent Circumstances

In the absence of a court order described above, the AG and DNI may also authorize the targeting of persons reasonably believed to be non-U.S. persons abroad if they determine that exigent circumstances exist which would cause the loss or delay of important national security intelligence. A certification supporting such acquisition is required to be submitted to the FISC as soon as practicable, but no later than seven days after the determination of exigency has been made. Collection of information is permitted during the period before a certification is submitted to the FISC.

In 2015, Congress included an amendment to FISA in the USA FREEDOM Act ( P.L. 114-23 ), to facilitate the continued surveillance of a target that was believed to be abroad, but is later found to be within the United States. As noted above, Section 702 originally did not permit surveillance of persons reasonably believed to be in the United States at the time of acquisition. As amended by the USA FREEDOM Act, surveillance of a non-U.S. person may continue for 72 hours after the target is reasonably believed to be within the United States, if a lapse in surveillance of the target poses a threat of death or serious bodily harm. A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that period.

Constitutional Challenges

Section 702 at the Supreme Court

Upon enactment of Title VII, a number of organizations brought suit challenging the joint authorization procedure for surveillance of non-U.S. persons reasonably believed to be abroad. The suit alleged that this authority violated the Fourth Amendment's prohibition against unreasonable searches. In order to establish legal standing to challenge Title VII, the plaintiffs had argued that the financial costs they incurred in order to avoid their reasonable fear of being subject to surveillance constituted a legally cognizable injury. However, on February 26, 2013, in Clapper v. Amnesty International , the U.S. Supreme Court held that the plaintiffs had not suffered a sufficiently concrete injury to have legal standing to challenge Title VII. Because the Court had no jurisdiction to proceed to the merits of the plaintiffs' claims, it did not decide the merits of the plaintiffs' constitutional claim.

FISC Opinions

In August 2013, the Obama Administration partially declassified several opinions of the FISC regarding collection activities under Section702. The first of these opinions, dated October 3, 2011, evaluated the targeting and minimization procedures proposed by the government to deal with new information regarding the scope of "upstream collection," in which communications are acquired from Internet traffic that is in transit from one unspecified location to another. Specifically, the government had recently discovered that its upstream collection activities had acquired unrelated international communications as well as wholly domestic communications due to technological limitations.

After being presented with this new information, the FISC found the proposed minimization procedures to be deficient on statutory and constitutional grounds. With respect to the statutory requirements, the FISC noted that the government's proposed minimization procedures were focused "almost exclusively" on information that an analyst wished to use and not on the larger set of information that had been acquired. Consequently, communications that were known to be unrelated to a target, including those that were potentially wholly domestic, could be retained for up to five years so long as the government was not seeking to use that information. The court found that this had the effect of maximizing the retention of such information and was not consistent with FISA's mandate to minimize the retention of U.S. persons' information.

The FISC also held that the proposed minimization procedures did not satisfy the Fourth Amendment. The FISC found that, under the facts before it, the balance required under the Fourth Amendment's reasonableness test did not favor the government, particularly in light of the statutory deficiencies.

Following the FISC's determination that the Fourth Amendment had been violated, the government presented revised minimization procedures to the FISC, and the court approved those procedures on November 30, 2011. The revised minimization procedures addressed the court's concerns by requiring the segregation of those communications most likely to involve unrelated or wholly domestic communications; requiring special handling and markings for those communications which could not be segregated; and reducing the retention period of upstream collection from five years to two. With these modifications, the court found that the balancing test required under the Fourth Amendment supported the conclusion that the search was constitutionally permissible.

Criminal Cases

While the Clapper Court dismissed the case on standing grounds, the Supreme Court did so in part relying on the fact that a criminal defendant could potentially have standing to challenge Section 702. At least five criminal defendants have been notified by the government that incriminating evidence was gathered pursuant to Section 702. Several of these defendants have moved to suppress such evidence, arguing that it was gathered unconstitutionally. The defendants in these cases raise Fourth Amendment challenges as well as alleging that Section 702 violates Article III of the Constitution, which limits the jurisdiction of federal courts to "cases" or "controversies." None of the courts to address these claims has ruled in favor of the defendants. Two cases involving criminal defendants are currently pending before the U.S. Courts of Appeals for the Second and Ninth Circuits, while a third is proceeding to trial in the U.S. District Court for the District of Colorado.