Why Section 702 Reform Matters

A recent report in the Washington Post delved into the National Security Agency’s (NSA) Section 702 surveillance activities, and although it found that the program returns useful information to the agency, it also revealed broad use of the legal authority to collect data and communications from non-target parties.

It also indicated that “unmasked identities remain in the NSA’s files, and the agency’s policy is to hold on to ‘incidentally’ collected U.S. content, even if it does not appear to contain foreign intelligence.”

In short under the legal purview of Section 702 of the Foreign Intelligence Surveillance Act (FISA), the NSA regularly collects — albeit in a roundabout fashion, and likely not one as robust and complete as it would like — data and communications of United States citizens that it hangs onto even if it has no immediate merit relating to national security.

The Post did not go into too much detail on the “valuable” information the sweeps returned for national security reasons, but noted the searches provided the government with information about a secret overseas nuclear project and the identities of cyber hackers attacking U.S. networks.

But the sweeps also provided the government agency with detailed information about the lives of more than 10,000 people who were not necessarily being targeted by the NSA. The Post report described the files, “determined as useless but nonetheless retained” as running the gamut from illicit sexual liaisons to financial anxieties. Pictures, including mothers kissing their infants and women modeling lingerie, were picked up in the broad searches.

As we have recently seen, the NSA is unafraid to use its authority to search its pooled data — that it collects directly from technology companies and by tapping the core fiber cables of the Internet — with “selectors” that relate to United States persons.

The Post report is damning in detailing the painful laxity that appears to pervade our national intelligence apparatus. In one example, it cites an analyst who inferred that every member of the chat friend list of a known foreigner to be foreign as well, a view so broad as to be almost ridiculous.

The report also indicates that Section 702 authority is often used when traditional warrants expire:

In an ordinary FISA surveillance application, the judge grants a warrant and requires a fresh review of probable cause — and the content of collected surveillance — every 90 days. When renewal fails, NSA and allied analysts sometimes switch to the more lenient standards of PRISM and Upstream.

“These selectors were previously under FISA warrant but the warrants have expired,” one analyst writes, requesting that surveillance resume under the looser standards of Section 702. The request was granted.

This matters as there has been action in the United States Congress to ban using so-called “backdoor” searches on United States persons.

A backdoor search under Section 702 is when stored data is queried using search terms to find the communications of Americans. The NSA, under Section 702, cannot go out and try to collect the communications of a known United States person, but it can search what it picks up “incidentally.”

Given the NSA’s own admitted broad use of Section 702, and that the FBI and CIA also use similar methods, and especially that the NSA’s incredibly broad interpretation of what it can collect under the rule, the amount of data and communications in its databases stemming from United States persons must be massive. And it has the authority to query that information without securing a warrant.

The NSA and the executive branch do not view backdoor searches as outside the letter, or spirit, of the law, according to their recent comments appended to the data released concerning the use of such authority.

Before the Post’s report this weekend, the Privacy and Civil Liberties Oversight Board (PCLOB) released a report that generally upheld the 702 program.  However no government oversight body, not even PCLOB, had delved into as large of a sample as the one the Post dissected. Even before these privacy violations were revealed, privacy advocacy groups like the Electronic Frontier Foundation were denouncing the report.

One quick way to kill something is to cut off its oxygen. And if you want to kill a part of government, stifle its cash flow.

If the Senate can follow the House into removing funding for Section 702 searches for United States persons, it would be meaningful reform.