The Expiration Date on Privacy Protections for Americans Abroad

As those following the debates on Section 702 of the Foreign Intelligence Surveillance Act (FISA) well know, one of the country’s most valuable intelligence surveillance authorities is set to expire at the end of this year. According to national security officials, if Congress fails to reauthorize that authority, Americans and U.S. allies will be less safe. But Congress’s failure to act before the expiration will harm more than national security; it will harm privacy as well.

The statutory provision that triggers expiration applies to more than just Section 702. The sunset clause is buried in technical language in Section 403(b), which provides that “effective December 31, 2023, title VII of the Foreign Intelligence Surveillance Act of 1978 ... is repealed” (emphasis added). Title VII includes Section 703 and 704 of FISA, which extend the jurisdiction of the Foreign Intelligence Surveillance Court (FISC) to cover U.S. persons who are outside of the United States. Under those sections, the government can target a U.S. person abroad if it obtains a court order based on probable cause to believe the person is an agent of a foreign power. Should those sections of FISA expire, then the state of the law will revert to what it was when the FISA Amendments Act was passed in 2008. 

This would not be a “win” for privacy. To the contrary, the government would be freer to conduct surveillance on U.S. persons outside the country than it is now. 

In the years before 2008, courts had been confronting the question of whether the Fourth Amendment requires the government to obtain a warrant to intercept the communications of Americans overseas for foreign intelligence purposes. In 2008, the U.S. Court of Appeals for the Second Circuit examined in In re Terrorist Bombings of U.S. Embassies in E. Africa whether the government should have obtained a warrant from a U.S. judge when it monitored the phone lines and searched the home of Wadih El Hage, an American citizen living in Kenya. In that case, the government suspected El Hage of being a member of al-Qaeda and of playing a role in planning the August 1998 terrorist bombings of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. After analyzing a range of precedents, the Second Circuit concluded that “the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness.” In so doing, it stated: 

For better or for worse, we live in a world of nation-states in which our Government must be able to function effectively in the company of sovereign nations. Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise halfway around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation. [Emphasis added.]

If the Fourth Amendment does not require the government to obtain a warrant to intercept the communications of Americans abroad, then one might assume that a court order would be statutorily required by Title 1 of FISA, which applies to “electronic surveillance.” But that is mistaken.

Congress enacted Title 1 in 1978 “to provide a procedure under which the Attorney General can obtain a judicial warrant authorizing the use of electronic surveillance in the United States for foreign intelligence purposes.” Congress crafted a complicated four-part definition of the term “electronic surveillance” that carefully limited FISA’s application to certain situations. Indeed, Congress deliberately wrote part of the definition to exclude certain National Security Agency surveillance techniques from its coverage. Senate Report No. 95-604(I) (1977) reads:

The reason for excepting from the definition of “electronic surveillance” the acquisition of international radio transmissions, including international wire communications when acquired by intercepting radio transmissions when not accomplished by targeting a particular United States person in the United States, is to exempt from the procedures of the bill certain signals intelligence activities of the National Security Agency. Although it is desirable to develop legislative controls in this area, the Committee has concluded that these practices are sufficiently different from traditional electronic surveillance techniques, both conceptually and technologically, that, except when they target particular United States citizens or resident aliens in the United States, they should be considered separately by the Congress.

Thus, intentionally targeting an American abroad may well fall outside the reach of FISA Title 1.

It took 30 years for Congress to separately “develop legislative controls in this area,” in the form of Sections 703 and 704 of FISA. Those sections now regulate the process for intercepting the communications of U.S. persons abroad for foreign intelligence purposes, which involves obtaining an individualized FISC order based on probable cause to believe the target is an agent of a foreign power. If those sections are allowed to expire, then the legal regime in effect before 2008 will snap back into place, meaning that the government can again target a U.S. person outside the country for foreign intelligence purposes (under circumstances that would require a warrant if done for law enforcement purposes) without need for a warrant under the Fourth Amendment or a court order under FISA Title 1. 

This does not mean that the government would be entirely free to do what it pleases. The reasonableness requirement of the Fourth Amendment would still apply. How would that be satisfied in the absence of a warrant or FISC order?

When there are gaps in legal protections imposed by the Constitution or statute, safeguards imposed by Executive Order 12333 come to the fore. In this situation, the key provision in the order is Section 2.5. In essence, that section provides that targeting a U.S. person outside the United States for foreign intelligence purposes would require that the attorney general find, based on probable cause, that the target is an agent of a foreign power. Section 2.5 is what the government relied on in putting in place surveillance on El Hage in the Second Circuit case discussed above. The district court in that litigation stated that it “does not take issue with the policies and procedures developed by the Executive Branch for foreign intelligence collection abroad,” including those outlined in Section 2.5 of Executive Order 12333. 

It is important to note that Section 2.5 operates only as a potential means of authorizing and validating government collection activity; it has no compulsory force or effect with respect to third parties. The government cannot “serve” an authorization under Section 2.5 on a provider to compel its cooperation. Its impact can be most clearly seen when the acquisition modality is located outside the United States; in this sense, its direct analogue is Section 704 of FISA. If the government needs to obtain the compelled assistance of a U.S. service provider in order to effectuate the acquisition, it must obtain an order to that effect from the FISC, and it may well need to do so under Section 703. Section 2.5 of Executive Order 12333 cannot substitute for Section 703’s compulsory power.

Thus, the standard for initiating surveillance would be the same—probable cause to believe the U.S. person target is an agent of a foreign power—but the decision-maker would be different. Rather than a neutral, detached magistrate, the authorization would come from the attorney general, a politically appointed officer. The current attorney general, Merrick Garland, happens to benefit from long experience as a federal judge and thus would be familiar with judicial applications of the probable cause standard. However, having these decisions made outside of the judiciary could be problematic amid ongoing claims of political “weaponization” of the government.

As the expiration date nears, one option that is apparently under discussion is a short-term extension of Title VII to give Congress more time to debate how to reauthorize and reform Section 702. Although Congress has known of the expiration date for a long time, it took until Nov. 7 for the first reauthorization bill to be published, co-sponsored by Sens. Ron Wyden (D-Ore.), Mike Lee (R-Utah), Warren Davidson (R-Ohio), and Zoe Lofgren (D-Calif.). A second bill, co-sponsored by the members of the Senate Select Committee on Intelligence, came out on Nov. 28. The House Judiciary Committee passed its own bill on Dec. 6, and the House Permanent Select Committee on Intelligence passed its bill on Dec. 7. These are not quick reads. They are lengthy, detailed, and seek to put in place significant changes (the first bill is 206 pages long; the second is a relatively brief 61 pages; the third is 58 pages long, but it also has a 57-page amendment in the nature of a substitute; and the fourth runs to 78 pages).

A group of legislators recently stated their opposition to a short-term extension. Their letter argues that even if Section 702 were to expire at the end of the year, the orders authorizing surveillance would remain in effect until their own expiration dates in April 2024. This is accurate for Section 702; Section 404 of the FISA Amendments Act of 2008 indeed provides that orders, authorizations, and directives will continue to apply until their expirations. Section 702 orders run for one year.

However, Section 703 and 704 orders run for only 90 days, and each order may have been issued on a different date. It is therefore theoretically possible for an order to expire right after the end of the year. If that happens, the government will be confronted with an uncomfortable choice: forego further surveillance on that target or seek attorney general approval under Section 2.5 of Executive Order 12333. And, of course, for any new U.S. person targets identified outside the U.S. during that time, Section 2.5 would be the only option.

Congress could amend the sunset clause itself, by replacing “title VII” with “Section 702” in the operative clause, so that it would read as follows: “Except as provided in section 404, effective December 31, 2023, Section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed” (emphasis added). This would have the salutary effect of making Sections 703 and 704 permanent features of the surveillance legal landscape.

That said, Congress should take the time to fully and carefully examine the reform options on the table and still to come. FISA is an enormously complex statute. It has taken this entire article to explain why two words in that statute make a critical difference in how privacy is protected. It is vital that Congress “get FISA right,” so that we have in place a legal framework that both authorizes the government to protect the nation and constrains the government from going too far.