Section 702 and the Collection of International Telephone and Internet Content

Laura K. Donohue, Georgetown University Law Center

Abstract

Programs initiated just after 9/11 involving the interception of communications to and from the United States shifted to the 2007 Protect America Act and, subsequently, the 2008 FISA Amendments Act. It was not until 2013 that the public became fully aware that the NSA interprets its authority under FISA §702 to intercept international, and at times, wholly domestic, communications. This Article is the first to question whether the NSA’s interpretations are statutorily consistent and constitutionally sound.

The Article begins with a statutory analysis, considering targeting, post-targeting analysis, and the retention and dissemination of data. In the first category, targeting, the Article argues that the NSA has sidestepped legislative restrictions in three critical ways: by adopting procedures that allow analysts to acquire information to, from, or “about” targets; by creating an assumption of non-U.S. person status; and by failing to construct adequate procedures to ascertain whether the target is located within domestic bounds. These interpretations undermine Congress’s inclusion of §§703 and 704 and open the door to the collection of U.S. persons’ communications. In the second category, post-targeting analysis, the Article draws attention to the aim of the analysis, the failure of prior minimization procedures to account for multi-communication transactions, the use of U.S. person information to query data, and the impact of recombinant information on §702 collection. In the third category, the retention and dissemination of data, the Article notes that increasing public reliance on cryptography raises questions about the automatic retention of encrypted data, even as the breadth of “foreign intelligence” underscores the danger of looking to retention policies to delimit information retained. The use of the data obtained under §702 for criminal prosecution, while consistent with traditional FISA, fails to reflect the equivalent procedural protections at the collection stage. This discussion leads naturally to Fourth Amendment considerations.

As a constitutional matter, outside of narrowly circumscribed exceptions, a search in criminal law is presumptively unreasonable under the Fourth Amendment unless the government first obtains a warrant from a neutral, disinterested magistrate, based on a finding of probable cause of involvement in criminal activity. This applies to all searches within the United States. It does not apply to non-U.S. persons without a significant attachment to the country who are outside domestic bounds. Between these book-ends are numerous, slimmer volumes that take account of questions such as whether the search centers on intelligence gathering or criminal prosecution, whether the target is a U.S. person or a non-U.S. person, where the search takes place, and the extent to which U.S. persons’ privacy is implicated.

The Article briefly lays out this broader Fourth Amendment territory before turning to the government’s argument that §702 collection takes place subject to a foreign intelligence exception to the warrant requirement. In the nearly four decades that have elapsed since the Court raised the possibility of such an exception—and in relation to which Congress responded by enacting FISA—not a single case has found a domestic foreign intelligence exception. Pari passu, as a matter of the international intercept of U.S. persons’ communications, practice and precedent prior to the FAA turned on a foreign intelligence exception to the warrant requirement derived from the President’s foreign affairs powers. Through §§703 and 704, Congress has since introduced stronger safeguards for U.S. persons targeted for foreign intelligence purposes. By defaulting to §702, however, and “incidentally” collecting U.S. persons’ international communications, the NSA is bypassing Congressional requirements. Acknowledging that the President and Congress share foreign affairs powers, the persistent use of §702 in this manner may be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer.

Even if one takes the position that the Warrant Clause is inapposite to collection of U.S. persons’ information under §702, the FAA and NSA practice must still comport with the reasonableness requirements of the Fourth Amendment. To the extent that the target is a non-U.S. person based outside of domestic bounds, and the communications are to or from the target, the programs appear to be consistent with the constitutional mandate. But to the extent that the NSA interprets the statute to include information about such targets, in the process collecting the communications of wholly domestic communications, as well as conversations between U.S. persons, the practice fails to meet the totality of the circumstances test articulated by the Court with regard to reasonableness.