You may not have heard of it, but Section 702 is one of the most powerful, and controversial, tools in the U.S. intelligence community's arsenal.
Technically, Section 702 is a part of the Foreign Intelligence Surveillance Act (FISA) of 2008. It's the provision which allow the intelligence community, specifically the National Security Administration, the ability to collect intelligence on foreign targets "reasonably believed" to be outside of U.S. borders. Digital communications like emails are collected and used to create intelligence reports for the wider intelligence community.
The law does not apply to U.S. citizens or permanent residents. In practice, however, a U.S. person's information could be, and has been, collected. 702 has two primary components: PRISM, also known as the "downstream," gathers information based on "selectors," such as a name or email address associated with an intelligence target. The selector is certified by the Director of National Intelligence and Attorney General. The NSA then gets information from an internet service provider and disseminates some of it to the CIA and FBI.
"Upstream" collection, unlike PRISM, taps into the "backbone" of the internet to collect information about, to or from a target. The "about" portion is what is considered controversial, considering it could include information that simply mentions a selector.
Both programs have the potential to include information about Americans due to what is sometimes referred to as "incidental information." For example, in upstream collection, an email in which two Americans are communicating domestically about a foreign target could be caught up in collection because the selector was mentioned. PRISM data could also include Americans information if a target were to correspond with an U.S. person.
In order to prevent this information from being misused, Congress required that intelligence agencies engage in certain "minimization procedures" to protect the privacy of Americans.
"I have never seen a program with more oversight than the 702 program," said David Shedd, the former acting director of the Defense Intelligence Agency and a 33-year veteran of the CIA, in an interview. "As a program, it has layers upon layers of checks and balances by all three branches of government."
But the Foreign Intelligence Surveillance Court (FISC), which oversees use of 702, has found that the program may infringe on privacy rights. Furthermore, the procedures did not eliminate U.S. persons' data entirely. Oversight entities have found these procedures have not always been properly followed, which led to the NSA voluntarily suspending upstream collection in April.
"This isn't a program where any court, including the intelligence court, looks at individual targets," said Neema Singh Guliani, legislative counsel at the American Civil Liberties Union Washington office, in an interview. "How astounding is that? That the government can essentially, with one order, surveil over a hundred thousand targets, and not just those targets, but all of those people that those targets are in communication with, including people in the U.S."
702 critics say the minimization procedures are not enough. They note that agencies like the FBI having access to this information provides them a "back door" which circumvents the necessity of a warrant to collect information on Americans by querying data provided to them by the NSA. They argue the program itself is therefore a violation of the Fourth Amendment.
"The question is not does it have value," said Guliani. "Me going and searching everybody's house every day without a warrant could yield some type of criminal activity, but that's not constitutional. That's exactly what the founders fought against. The question is whether 702 collection respects the Fourth amendment, and it doesn't."
Courts have so far sided with the government when it comes to 702 cases, but organizations like the ACLU note that the lack of information available to the public on the program has inhibited an open debate. Supporters point to the fact that 25 percent of all intelligence information in the community uses 702 data, making it crucial to national security.
"There are countless numbers of things where one played off another when it comes to streams of information," said Shedd. "One tip and doing a site investigation leads to traces of one thing or another that really take you down a different path of the investigation once you have that. That's where 702 comes in. "
Congress has until the end of the year to decide what to do. Some new bills on 702 have been proposed, but with less than two weeks left on the legislative calendar, it is unclear if 702 will be removed, amended, renewed or simply extended to be reviewed again at a later date.