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Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to 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 to, from and 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 collection of U.S. persons’ international communications, even as they open the door to intercepting 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 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 violate the Fourth Amendment. 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 in 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. The interception of U.S. persons’ communications under §702 must 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 selectors/targets, and the interception of 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.

Publication Citation

38 Harv. J.L. & Pub. Pol'y 117 (2015)