Focusing on 702: A Brief Reply to the Brennan Center’s Liza Goitein and Faiza Patel

The Brennan Center’s Liza Goitein and Faiza Patel have posted a response  to my post of last week challenging three of their recommendations in their recent report on the FISA Court. This post is a brief reply to their first response point regarding the justification for and important function of Section 702 of FISA. Section 702 is not one of the provisions that is scheduled to sunset June 1st absent Congressional action, but, as Ben noted earlier this week, it too will require reauthorization, in 2017. In their response, Liza and Faiza reiterate that the “primary purpose and effect [of 702] was to remove the requirement of an individual order for the acquisition of communications between foreign targets and U.S. persons.” On the intended purpose of the 2008 amendment, I don’t think that a review of the legislative record would show that the “primary purpose” of Section 702  - that is, the reason the legislative amendment was sought - was to collect on U.S. persons (and/or persons in the United States, which includes both U.S. and non-U.S. persons.)  A review of the statements for the record from DOJ and DNI officials in 2007 and 2008 would reveal that the purpose was to facilitate acquisition directed at non-U.S. persons reasonably believed to be outside the United States, for foreign intelligence purposes. Perhaps some think that those arguments were simply subterfuge for a behind-the-scenes goal of collecting on U.S. persons, but that impression is not supported by the record. Nor does it square with my own experience working on these issues in government during that time period. Moreover, to the extent that those type of concerns were held by some members of Congress at the time, the final, enacted version of the FISA Amendments Act of 2008 included a specific prohibition on reverse targeting (targeting a non-U.S. person for collection with the actual goal of collecting the communications of a U.S. person), as well as court approval of the targeting and minimization procedures. Incidental collection of U.S. persons was foreseen and expected; that’s why there are minimization procedures that provide rules for how those communications must be handled. But when the government sought 702 authority, it did so for the purpose of facilitating the targeting of non-U.S. persons outside the United States for foreign intelligence purposes. As to effect, Section 702 does not “remove the requirement for an individualized order for the acquisition of communications between foreign targets and U.S. persons,” as Liza and Faiza describe it, in circumstances when the target of the collection is a U.S. person, or, any person in the U.S.  Instead, if the U.S. government seeks to target for collection a U.S. person anywhere in the world (including the U.S., of course), or a non-U.S. person inside the United States, the government must obtain a probable cause based order from the Foreign Intelligence Surveillance Court. Although Liza and Faiza say that they are not proposing a court order requirement when targeting a foreigner overseas, replacing Section 702 “with a regime requiring an individual court order for the interception of communications involving U.S. persons,” as they describe it, would likely do just that, whether or not that is the intent of their proposal.  I’ll highlight but one reason for now: as a practical matter, the government cannot know, in advance, with whom a target will communicate. Any communication from anywhere in the world could, potentially, “involve” a U.S. person or person in the U.S. For example, a U.S. person or person in the U.S. could intentionally be sent an e-mail from a foreign intelligence target overseas.  Or, a U.S. person or person in the U.S. could be one of one several people cc’d on an e-mail from a non-U.S. person overseas target. The variations on this theme are many. The U.S. end might be of foreign intelligence value; it might not. The current set of approvals and procedures under Section 702 would accommodate either situation, without resorting to submitting probable cause based applications to the court to target a non-U.S. person foreign intelligence target who is outside the United States.