Posted by Guest on January 19, 2018 in Blog

By Mollie Todd

Last week, President Trump took to Twitter to provide his opinions on the reauthorization of Title VII- Section 702 of the FISA act. It seemed that the President was originally unaware of what the act was, or that only Section 702 of the bill was being reauthorized. His first tweet claimed that, “This is the act that may have been used…to so badly surveil and abuse the Trump Campaign by the previous administration and others?” Immediately following this statement, President Trump was informed by Speaker of the House Paul Ryan on the differences between foreign and domestic surveillance. He then added another tweet, “Today’s vote is about foreign surveillance of foreign bad guys in foreign lands. We need it!” Another false statement, as Section 702 of FISA has allowed for the information of American citizens to be incidentally collected. As of January 18th, FISA-Section 702 was voted on in Congress and President Trump signed the bill on the following day.

Originally enacted in 1978, the Foreign Intelligence Surveillance Act requires the government to obtain a court order to view the electronic messages of a suspected terrorist abroad or on U.S. soil. Post 9/11 attacks, the FISA expanded to include Section 702, which “authorizes targeting of any foreigner located abroad for intelligence purposes…to gather information with respect to a foreign power or foreign territory that relates to the conduct of the foreign affairs of the United States.” The belief that Section 702 only allows for the surveillance of suspected foreign persons is a common misconception. This statute actually permits gathering information on common activities, like protesting outside of a U.S. embassy, supporting a human rights group, or even writing a blog about international affairs. It also enables surveillance to be conducted incidentally on communication between American citizens and their foreign contacts.

It is still unclear exactly how many American citizens have been incidentally targeted in surveillance conducted under FISA-Section 702. Despite multiple requests from civil liberties advocates, lawmakers, and members of Congress, the National Security Administration has failed to report the number of Americans caught up in intelligence sweeps and what is being done with the collected information.

These factors pose a gross violation of the rights and privacy of Americans and present further ramifications for the people whose information has been collected. Once the information on individuals has been gathered via 702, they can be searched through the FBI’s “backdoor search loophole.” Normally the FBI would be required to obtain a warrant in order to view Americans’ correspondence, but instead are able to search data collected on Americans via Section 702. The backdoor search loophole is in violation of the Fourth Amendment, which requires a warrant to be obtained to search the communications of all American citizens.

The latest reauthorization of Section 702 attempts to address this issue, albeit insufficiently. The new addition requires a warrant for backdoor searches, but only in the most seldom of circumstances. The provision states that FBI agents would only have to obtain search warrants, “in connection with a criminal investigation opened by the Federal Bureau of Investigation that does not relate to the national security of the United States.” Meaning, that an FBI agent would only need to get a warrant once enough information has been gathered to launch a formal criminal investigation. The information collected through Section 702 pertaining to Americans would still be open to the FBI without a warrant, should they wish to search through the collected data.

Though Section 702 of the Foreign Intelligence Surveillance Act has been reauthorized by President Trump, this and other intelligence practices demand transparency. It remains to be seen if mounting pressure from Congress will push intelligence officials to publically release statistics on how many Americans have been targeted by this law, what is being done with this information, and how long it is being held. It is also uncertain whether or not more reforms will be made to limit “backdoor loophole search” capabilities.

Mollie Todd is a Spring 2018 intern at the Arab American Institute