Fact Sheet: FISA Section 702
February 27, 2014
Issue: Does Section 702 of the Foreign Intelligence Surveillance Act (FISA), which regulates the collection of information from non-U.S. persons located abroad, result in the indirect, warrantless collection of U.S. persons’ data?
Background: Section 702 of FISA, added under the FISA Amendments Act of 2008 (FAA), and subsequently extended until 2017 via the FISA Amendments Act Reauthorization Act of 2012, provides the authorities for the collection of foreign communications, including phone and email data, by the NSA and establishes procedures for targeting non-U.S. persons believed to be outside the U.S. for foreign intelligence collection purposes. The Attorney General and the Director of National Intelligence are granted the authority to determine surveillance targets for periods up to one year as long as the collection has a “significant” foreign intelligence purpose, is not aimed at U.S. persons or persons within the U.S., and that they have undertaken minimization procedures to protect the collected data. Section 702 collection focuses on foreign individuals located outside of the U.S.
Controversy: The use of surveillance authorities under Section 702 has sparked concern about the potential for warrantless surveillance of U.S. persons. While Section 702 explicitly prohibits both the direct and indirect intentional targeting of U.S. persons or of any person known to be in the U.S., the communications of some U.S. persons are occasionally collected in the course of legitimate surveillance operations. The Washington Post reported that a leaked NSA program audit from May 2012 “counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.”
Assessment: Compliance issues are not willful violations. Rather, they are often the result of changes or weaknesses in software technology, computer errors, or operator mistakes, each of which is reported as an incident. The recently declassified 2013 “Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” found a less than half-percent incident compliance rate. Of the compliance incidents the joint oversight team assessed in the semi-annual report, it did not identify any evidence of deliberate or intentional attempts to violate or circumvent the requirements of FISA.
Section 702 actually expands the FISC’s oversight of foreign intelligence collection to an area it previously didn’t oversee: “the surveillance, for foreign intelligence purposes, of foreigners overseas.” FISA includes oversight mechanisms to prevent misuse for 702 collections. These include oversight by the FISC of all 702 collection activities, the review and approval by the FISC of all targeting and minimization procedures, regular reporting to Congress on Section 702 collection, and regular reviews by independent Executive Branch Inspectors General.
Scott F. Mann is a research associate with the Strategic Technologies Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C.
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