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  • Ashley N. Baker

Congress Must Shut the Backdoor on Section 702 Surveillance

The fight over NSA surveillance is about to heat up again. This week, the House will consider a measure that would require the NSA and other government agencies to follow due process and obtain a warrant to collect the communications of American citizens. Through an amendment to H.R. 5293, the Department of Defense Appropriations Act of 2017, the House could defund warrantless government searches of the database of information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA).

The amendment (pdf), proposed by Reps. Massie (R-Ky.), Lofgren (D-Calif.), and Poe (R-Texas), would prevent the NSA's backdoor spying on American citizens through the use of U.S. person identifiers.

The Massie-Lofgren-Poe amendment also prohibits government agencies from requesting that U.S. companies build security vulnerabilities into their hardware or software in order to make it easier for the government to access them. This would protect encryption, which has been undermined by the NSA's breathtaking extension of surveillance.

In a Wednesday morning letter to House leaders, 21 advocacy groups including FreedomWorks, R Street Institute, and Electronic Frontier Foundation (EFF), asked lawmakers to support the Massie amendment. This amendment is critical, the letter states, because "the government argues [Section 702] does not explicitly restrict deliberately querying communications of Americans that were 'incidentally' collected."

Most importantly, passage of this amendment would set the stage for next year’s expiration of Section 702. This provision allows the NSA to sweep up the communications of American citizens when targeting foreign surveillance suspects. The backdoor search loophole created by Section 702 undermines the Fourth Amendment protection against search and seizure.

Although the Massie-Lofgren-Poe amendment is an important first step in securing privacy in the face of unconstitutional surveillance, this is not the last step in the battle to end Section 702. The threats posed by the NSA's use of Section 702 point out the importance of FreedomWorks' Digital Bill of Rights.

What is Section 702?

It is a provision of the Foreign Intelligence Surveillance Act (FISA), a 1978 law that authorizes the NSA to collect the electronic communications and internet traffic through the targeted spying on specific and identified agents of foreign powers.

Section 702 creates a surveillance vacuum that collects information from and about individuals, often American citizens, who are unaffiliated with the foreign surveillance target. The interception of this information not only impedes our right to privacy, it can also be used by federal agencies in investigations that are unrelated to terrorism.

Currently, Section 702 is being used as an end-run around the Fourth Amendment. The National Security Agency (NSA) uses this provision to circumvent due process through communications collection methods that are as invasive as they are far-reaching.

Here is just how permissive the NSA’s interpretation of targeting is:

Section 702 allows the NSA to intercept communications by anyone who is:

  1. Outside the United States;

  2. In the U.S. but their communications are backed up or stored abroad;

  3. Inside the U.S. but using a VPN and their IP address looks like it is outside the U.S.;

  4. Inside the U.S. but their IP address does not appear to be inside the US for any other wide variety of reasons. Inside the U.S. but located near a surveillance target.

However, most communications intercepted by Section 702 surveillance are from individuals who are:

  1. A United States citizen or resident;

  2. Located within the United States;

  3. Not communicating with a foreign target.

In fact, a Washington Post investigation of 160,000 conversations collected under Section 702 between 2009 and 2012 found that 90 percent of the communications were not from foreign surveillance targets.

This means that Section 702 has the potential to affect 286,942,362 internet users in the United States. That’s 88.5% of the country’s population. The potential for harm through the collection of cell phone data is even greater; 92% of Americans own a cell phone and 68% own a smartphone.

The NSA's abuse of Section 702 is under increasing scrutiny.

In theory, Section 702 is inconsistent with our expectation of privacy; in practice, it is unconstitutional. The right to due process should be preserved in the digital realm. Just as in the physical world, digital searches and seizures must require a properly issued, individual warrant, and not be conducted arbitrarily or in bulk.

The amendment being considered by the House this week is consistent with the belief that the protections established in the Constitution serve Americans in the digital world just as effectively as they do in the real world.

Note: This post was cross-published here.

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