Saturday, February 3, 2018

How Congress’s Extension of Section 702 May Expand the NSA’s Warrantless Surveillance Authority

Last month, Congress reauthorized Section 702, the controversial law the NSA uses to conduct some of its most invasive electronic surveillance. With Section 702 set to expire, Congress had a golden opportunity to fix the worst flaws in the NSA’s surveillance programs and protect Americans’ Fourth Amendment rights to privacy. Instead, it reupped Section 702 for six more years.

But the bill passed by Congress and signed by the president, labeled S. 139, didn’t just extend Section 702’s duration. It also may expand the NSA’s authority in subtle but dangerous ways.

The reauthorization marks the first time that Congress passed legislation that explicitly acknowledges and codifies some of the most controversial aspects of the NSA’s surveillance programs, including “about” collection and “backdoor searches.” That will give the government more legal ammunition to defend these programs in court, in Congress, and to the public. It also suggests ways for the NSA to loosen its already lax self-imposed restraints on how it conducts surveillance.

Background: NSA Surveillance Under Section 702

First passed in 2008 as part of the FISA Amendments Act—and reauthorized last week until 2023—Section 702 is the primary legal authority that the NSA uses to conduct warrantless electronic surveillance against non-U.S. “targets” located outside the United States. The two publicly known programs operated under Section 702 are “upstream” and “downstream” (formerly known as “PRISM”).

Section 702 differs from other foreign surveillance laws because the government can pick targets and conduct the surveillance without a warrant signed by a judge. Instead, the Foreign Intelligence Surveillance Court (FISC) merely reviews and signs off on the government’s high-level plans once a year.

In both upstream and downstream surveillance, the intelligence community collects and searches communications it believes are related to “selectors.” Selectors are search terms that apply to a target, like an email address, phone number, or other identifier.

Under downstream, the government requires companies like Google, Facebook, and Yahoo to turn over messages “to” and “from” a selector—gaining access to things like emails and Facebook messages.

Under upstream, the NSA relies on Internet providers like AT&T to provide access to large sections of the Internet backbone, intercepting and scanning billions of messages rushing between people and through websites. Until recently, upstream resulted in the collection of communications to, from, or about a selector. More on “about” collection below.

The overarching problem with these programs is that they are far from “targeted.” Under Section 702, the NSA collects billions of communications, including those belonging to innocent Americans who are not actually targeted. These communications are then placed in databases that other intelligence and law enforcement agencies can access—for purposes unrelated to national security—without a warrant or any judicial review.

In countless ways, Section 702 surveillance violates Americans’ privacy and other constitutional rights, not to mention the millions of people around the world whose right to communications privacy is also ignored.

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