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Section 702 of the Foreign Intelligence Surveillance Act authorizes the NSA and others to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than was previously publicly understood. The article begins by considering the origins of the current programs and the relevant authorities—particularly the transfer of part of the President’s Surveillance Program, instituted just after 9/11, to the 1978 Foreign Intelligence Surveillance Act (FISA). It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection under Executive Order 12333.

The article next turns to statutory issues related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped FAA restrictions by adopting procedures that allow analysts to acquire information not just to or from, but also “about” targets. In its foreignness determination the agency assumes, absent clear evidence to the contrary, that the target is a non-U.S. person located outside domestic bounds. And weak standards mark the foreign intelligence purpose determination. Together, these elements allow for the broad collection of U.S. persons’ international communications, even as they open the door to the interception of entirely domestic communications. In regard to post-targeting analysis, the article draws attention to the intelligence community’s use of U.S. person information to query data obtained under 702, effectively bypassing protections Congress introduced to prevent reverse targeting. The article further notes, in relation to retention and dissemination, that increasing consumer and industrial reliance on cryptography means that the NSA’s automatic retention of encrypted data may soon become the exception that swallows the rule.

In its constitutional analysis, the article finds certain practices instituted under §702 to fall afoul of the Fourth Amendment. Although lower courts had begun to recognize a domestic foreign intelligence exception to the warrant clause, in 1978 Congress introduced FISA to be the sole means via which domestic foreign intelligence electronic intercepts could be undertaken. Consistent with separation of powers doctrine, this shift carried constitutional meaning. Internationally, practice and precedent prior to the FAA turned on a foreign intelligence exception . But in 2008 Congress altered the status quo, introducing individualized judicial review into the process. Like FISA, the FAA carried constitutional import.

If that were the end of the story, one could argue that the incidental collection of U.S. persons’ information, as well as the interception of domestic conversations absent a warrant, ought to be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer. Renewal in 2012, however, points in the opposite direction. The NSA’s actions, for purposes of the warrant clause, are constitutionally sufficient insofar as foreign intelligence gathering to or from non-U.S. persons is concerned. The tipping point comes with regard to criminal prosecution. Absent a foreign intelligence purpose, there is no exception to the warrant requirement for the query of U.S. persons’ international or domestic communications.

Although a warrant is not required for foreign intelligence collection, the interception of communications under §702 must still comport with the reasonableness requirements of the Fourth Amendment. A totality of the circumstances test, in which the significant governmental interest in national security is weighed against the potential intrusion into U.S. persons’ privacy, applies. The incidental collection of large quantities of U.S. persons’ international communications, the scanning of content for information “about” non-U.S. person targets, and the interception of non-relevant and potentially entirely domestic communications in MCTs, as well as the query of data using U.S. person identifiers, fall outside the reasonableness component of the Fourth Amendment.

The article concludes by calling for renewed efforts to draw a line between foreign intelligence gathering and criminal law and to create higher protections for U.S. persons, to ensure that the United States can continue to collect critical information, while remaining consistent with regard to the right to privacy embedded in the Fourth Amendment.


Draft date: 7/23/2014

Still undergoing revisions.

Publication Citation

38 Harv. J.L. & Pub. Pol'y (forthcoming 2015)