Skip to Content

Government Surveillance

We Know a Lot More About U.S. Spying Since Section 702’s Last Reauthorization

Originally posted on New York University School of Law’s Just Security

As Congress finally starts to debate whether to reauthorize Section 702 of the FISA Amendments Act before it expires at the end of this year, it’s important to remember that we know a lot more about the government’s troubling practices since the law was last reauthorized in 2012.

As a reminder, FISA is the statute that regulates foreign intelligence surveillance and for decades required individualized court orders based on probable cause to collect information about people here in the U.S. Seeking to authorize President George W Bush’s warrantless wiretapping program, Congress passed Section 702 to allow the government to target foreigners abroad without any judicial determination that the person was a national security threat– knowing that the collection would happen here in the US and that Americans could be picked up in the process. Procedurally, the government obtains an annual 702 order from the FISA Court after negotiating the privacy and targeting rules that will apply to the program. The government is then allowed to choose its own targets for “foreign intelligence” spying, which not only includes terrorists, spies, and foreign leaders, but for people relevant to the catch all categories of defense and foreign affairs. It collects both metadata and the content of communications, and compels U.S. tech companies, phone companies and internet service providers to turn over the data. Once collected, it is saved for years and used not only in intelligence investigations, but criminal prosecutions. It has not been substantively amended since its original passage in 2008.

Calls to extend the program without any amendment seem to ignore the last four years and all the new information available to members of Congress due to Edward Snowden’s 2013 leaks and the Obama administration’s subsequent transparency efforts. Lawmakers should be very concerned about its scope, lack of privacy protections, and near-constant compliance problems. Legislators who supported the program before should feel free to change their minds.

Here’s a quick refresher on all the revelations that should factor into the Section 702 reauthorization debate:

[Read more of Michelle’s post over at Just Security.]