The Clock is Ticking: Why Congress Needs to Renew America’s Most Important Intelligence Collection Program, Part IV
September 29, 2017
This article is the fourth and final part of a four part series arguing for the renewal of the FISA Amendments Act originally enacted in 2008, extended in 2012, and now set to expire on December 31, 2017. The first part of the series was published on September 19, 2017 and can be accessed here. The second part, published on September 21, 2017, can be found here, and the third part, published on September 27, 2017, here.
Accepting that the Program, as a whole, meets the reasonableness standard required by the Fourth Amendment, the critical importance of the Section 702 Program to the nation’s security should warrant its reauthorization without any neutering by Congress. Critics, however, importune for changes that, aside from the overriding constitutional issue, largely focus on the following items. There is no compelling case to be made that Section 702 should be weakened to accommodate any of these proposals.
The Back Door Search
This topic raises the Fourth Amendment issue in a slightly different context from the initial collection. Many critics have suggested that the constitutional infirmity in the Section 702 Program, if not found in the initial collection, arises in the subsequent uses of the acquired data. Particularly, critics argue that querying unminimized Section 702 data that includes incidentally acquired U.S. person communications should be construed as a separate search requiring probable cause and the issuance of a warrant, especially if that querying employs the use of U.S. person identifiers as selection terms.
One response to this criticism is found in the conclusions reached by the courts in both U.S. v. Muhtorov and U.S. v. Mohamud; i.e., that accessing the data legally acquired pursuant to Section 702 using the FISC-approved minimization procedures is not a separate search for Fourth Amendment purposes. Indeed, no court that has considered the question has concluded that a search of Section 702 data acquired in connection with a lawful Section 702 acquisition requires a warrant or showing of probable cause in connection with any subsequent querying of that data so long as the collection of foreign intelligence was a significant purpose of the initial acquisition. This finding reflects, at least in part, a judicial recognition that, since FISA was originally enacted in 1978, Congress has specifically contemplated that information acquired pursuant to lawful FISA surveillances may be used both for foreign intelligence and for law enforcement purposes. From the initial passage of FISA in 1978, for example, Congress defined “agent of a foreign power” by reference to conduct that violates U.S. criminal law reflecting an understanding that counterintelligence operations in particular often embrace both law enforcement and foreign intelligence features and interests.
On the other hand, the reasonableness of Section 702 collection is principally predicated upon the foreign intelligence aspect of the surveillance. The question is whether foreign intelligence need only be a significant purpose in the acquisition of the communication, or need continue as a significant purpose as the communication or any information derived therefrom is retained, used, and disseminated? Muhtorov and Mohamud suggest that such a continuum is not required, so long as foreign intelligence information was a significant purpose of the initial acquisition, as required by the statute, although the court in Mohamud described it as “a very close question.”
Conversely, the PCLOB felt that a holistic view of the Program required that the foreign intelligence focus be carried beyond whether communications were “lawfully acquired” (i.e., beyond acquisition) to consideration of whether that focus is maintained in the retention, use, and dissemination of the communication or any information derived therefrom. Not surprisingly given its mission, the PCLOB’s viewpoint inclines towards privacy concerns but simply because a suggested practice might better protect privacy does not mean the Fourth Amendment requires it. At the NSA, where the focus is entirely on the collection of foreign intelligence information, the queries of the Section 702 database must be limited to selection terms “reasonably likely to return foreign intelligence information.” There is no “back door” searching performed for law enforcement purposes.
While the FBI’s minimization procedures permit such querying, the FISC has consistently ruled that those minimization procedures meet Fourth Amendment standards of reasonableness. More to the point, in the context of the debate on congressional reauthorization, Congress was fully aware of the “back door” search issue when the extension of the FAA was debated in 2012. Efforts to amend the legislation to address this issue failed, and the FAA was extended by sizable majorities in both houses of Congress. Nothing that has transpired since that 2012 extension in terms of either law or policy warrants any significant change to the statute in response to this “back door” search issue.
The “Significant Purpose” Test
Another modification sought by opponents to Section 702 is a call for Congress to require that the collection of foreign intelligence information be the “primary purpose” of a Section 702 surveillance. Actually, the call is usually for Congress to “return” to a “primary purpose” standard when, in fact, Congress has never required that the collection of foreign intelligence information be the “primary” purpose of a surveillance under FISA or the FAA.
The “primary” modifier was judicially supplied in a case that was initiated before the original FISA bill ever became law. Subsequently, the FISCR observed that, in the Patriot Act, a statutory predecessor of Section 702, Congress had statutorily required that the acquisition of foreign intelligence constitute “a significant purpose” of the surveillance. As the court explained, the “significant purpose” standard properly delineated the congruence that often exists, particularly in counterintelligence investigations, between the government’s foreign intelligence and law enforcement interests. In the FISCR’s words, insisting that foreign intelligence represent a “primary purpose” of a surveillance rests on a false premise producing a demarcation that is “inherently unstable, unrealistic, and confusing.” This is a view that Congress would be well to remember as critics call for grafting the old “primary purpose” approach into a renewal of Section 702. The recollection should not be difficult given the extended congressional debate surrounding the decision to incorporate “significant” as the appropriate modifier for “purpose” in the Patriot Act. Altering this statutory language would presumably inject the FISC into the inherently unstable business of speculatively assessing the origins and progress of an investigation to pinpoint when it has morphed in focus from being “primarily” directed towards the acquisition of foreign intelligence information and, instead, has wandered into the arena of law enforcement. This analysis is unnecessarily treacherous for any court venturing into the esoteric world of foreign intelligence, counterintelligence and counterterrorism.
Pretending that such a bright line can, or should, be judicially discerned is particularly unrealistic in counterintelligence investigations where foreign intelligence and potential prosecution interests often proceed in tandem. To have the purpose (and, correspondingly, the legality) of a Section 702 surveillance determined by judicial guesswork instead of relying upon the articulation of national security professionals as expressed in the Section 702 certification statutorily required by Congress would substitute judicial uncertainty and unfamiliarity for experience and professionally-informed judgment while hampering exactly the sort of cooperation and shared objectives essential to effective counterintelligence work.
Congress should reject any effort to alter the “significant purpose” standard currently incorporated into Section 702.
Unconstitutionality Presented as a First Amendment Challenge
While one constitutional debate might seem enough, the claim that First Amendment rights also are infringed by Section 702, as alleged in Wikimedia Foundation v. National Security Agency, is deserving of comment. Wikimedia asserts that at least some of its communications have been intercepted, copied, and reviewed by NSA as part of the Section 702 Program and that, in violation of its First Amendment rights, Wikimedia now self-censors its international communications or forgoes electronic communications altogether.
Generally speaking, the analysis of First Amendment rights alleged to be chilled by governmental surveillance follows Fourth Amendment precepts but, when the First Amendment is invoked, courts are told to apply these standards “with scrupulous exactitude.” Adding the requisite exactitude produces no different result; thus, the extended Fourth Amendment discussion presented above also serves to resolve this issue.
This is not only legally sound reasoning; it is logically sound practice. In the Wikimedia case, for example, the challenge is that Section 702 collection “chills” the exercise of the plaintiffs’ First Amendment rights because their “sources” will hesitate to communicate if they believe that NSA is collecting their communications. Setting aside the subjective concerns of these “sources,” objectively, such collection is possible only if the “sources” fill another role, i.e., “targets” properly identified through the application of NSA’s targeting procedures pursuant to an appropriate FISC-approved certification. To be targets, such “sources” are necessarily foreigners reasonably believed to be located abroad who, the government attests, will use the tasked selectors to transmit or receive foreign intelligence information necessary to the national security of the U.S. or the conduct of the nation’s foreign affairs.
The First Amendment cannot be read to immunize legitimate foreign intelligence targets from Section 702 surveillance simply because Wikimedia views them as “sources.” No court has sustained such a perverse outcome which would essentially subordinate the conduct of U.S. foreign intelligence operations to the news gathering decisions made by Wikimedia and other media entities. As noted above, Wikimedia’s First Amendment claims are properly resolved by reference to Fourth Amendment standards—and the Section 702 Program has been repeatedly approved as consistent with those standards.
No Restrictive Definition for “Facility”
Some critics have argued that Section 702 collection should be corralled by Congress creating a precise and limited definition of the term “facility,” and thereby precluding NSA’s interpreting that term to cover the gateways and cable heads forming part of the internet “backbone.” According to these critics, “facility” had traditionally been understood to represent a single telephone number or email address, and NSA’s reading impermissibly expands the scope of collection beyond anything intended by Congress.
The problem with this approach is that it runs counter to the underlying purposes Congress sought to advance in creating the FAA. When Congress enacted FISA in 1978, the opening section of the statute defined fifteen terms, but “facility” was left undefined. When the FAA was passed in 2008, Congress defined five additional terms, but left “facility” undefined. This seems less inadvertent and more deliberate considering that the FAA was enacted by Congress to adapt FISA to changes in technology and the structure of international communications that had occurred since FISA’s initial passage in 1978. Knowing this, the more plausible interpretation of the absence of any definition for “facility” in the FISA statutes is that Congress has sought to ensure that the term retains the flexibility needed to assure that U.S. intelligence-gathering stays abreast of evolving technology. To now incorporate a restrictive definition for “facility” into any FISA renewal only serves to curtail this desired flexibility and stifle future adaptation in the face of technological evolution.
Should Compliance Issues Sink Section 702?
In a single word: No. This quintessentially tosses the baby out with the bath water. Concededly, there have been occasions where the arcane procedures in this complex programmatic undertaking have been violated. We know this because those instances have been self-reported as required by the rigorous oversight processes that regulate the Section 702 Program. It would be absurd to assume that a program as intricate and highly regulated as this one would function without such mistakes since, despite its technological sophistication, many of its essential functions are conducted by humans subject to human error. Significantly, however, multiple oversight and reviewing authorities are unanimous in reaching the conclusion that, as the PCLOB determined, there has been “no evidence of intentional abuse” nor “any attempt to intentionally circumvent legal limits.” As recently disclosed by the ODNI in connection with its release of the 13th, 14th, and 15th “Joint Assessments of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” no instance of intentional circumvention or violation of the procedures or guidelines has ever been found.
Continued training, careful oversight, and proper remediation are the keys to improving the execution of the Section 702 Program, but past mistakes furnish no basis to materially alter the current statutory and regulatory structure. If Congress has compliance concerns regarding the Program’s implementation, a more prudent remedy would require that Section 702 training activities be included in the executive branch’s reporting requirements and mandate independent review of those training activities where any deficiencies are revealed.
In an age of asymmetric conflict precipitated by unconventional threats perpetrated through anonymous actors, it has never been more vital to equip the Intelligence Community with the best tools available consistent with the constitutional protections assured all citizens. Section 702 is such a tool; a Program of such expanding importance that more than 25% of NSA’s counterterrorism reporting draws on Section 702 collection. Described as the “crown jewel” of the Intelligence Community’s surveillance authorities, with an established history of protecting against terrorism, the Attorney General and the DNI jointly have written to Congress identifying the reauthorization of Section 702 as their “top legislative priority” and requesting that Congress “promptly reauthorize, in clean and permanent form,” Section 702 of FISA. The Congress absolutely should renew Section 702 without any material change in the statutory scheme that might neuter this extraordinarily vital contributor to the nation’s security.
 William C. Banks, “Responses to 10 Questions,” Journal of the National Security Forum, Vol. 35, No. 5 at 5016 (2009) available at http://open.mitchellhamline.edu
 U.S. v. Muhtorov, 187 F.Supp.3d at 1256; U.S. v. Mohamud, 2014 WL 2866749, at *26.
 See, e.g., U.S. v. Muhtorov, 187 F.Supp. 3d at 1256; U.S. v. Mohamed 2014 WL 2866749, at *26 (concluding that accessing the data legally acquired pursuant to Section 702 using the FISC-approved minimization procedures is not a separate search for Fourth Amendment purpose).
 See, e.g., 50 U.S.C. § 1801(h)(3) (minimization procedures are to “allow for the retention and dissemination of information that is evidence of crime … that is to be retained or disseminated for law enforcement purposes”); 50 U.S.C. § 1808(a)(2)(B) (requiring that Attorney General’s semiannual report to Congress on FISA activities include a description of each criminal case in which FISA-derived information has been authorized for use at trial).
 See, e.g., 50 U.S.C. § 1801(b)(2) (“Agent of a foreign power” means – … (2) any person who – ((A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statues of the United States ….”).
 50 U.S.C. § 1881a(g)(2)(A)(v).
 U.S. v. Mohamud, 2014 WL 2866749, at *26.
 PCLOB Report at 95.
 2016 NSA Minimization Procedures at 4.
 See, e.g., Memorandum Op. and Order, Caption [Redacted], Docket No. [Redacted], at 26-36 (FISC November 6, 2015 (Hogan J.)) (approving FBI minimization procedures that permit querying Section 702-acquired data to “find and extract” either “foreign intelligence information” or “evidence of a crime” despite objections from amicus curiae appointed by the court).
 See Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv.J.L. & Pub. Pol’y 117, 156-157 (2015) (acknowledging that concerns about the “back door” were raised in Congress in the spring of 2012 during debate on the extension of the FAA but that “efforts to amend the legislation failed” and the extension was passed by substantial majorities in both houses of Congress).
 U.S. v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980).
 See In re Sealed Case, 310 F.3d 717, 732-733 (FISCR 2002) (FISCR notes that Congress was precisely aware of the change made in adding “significant” as a modifier of “purpose” in the statutory language). See also 50 U.S.C. § 1881a(g)(2)(v) (Section 702 certification must attest that “(v) a significant purpose of this acquisition is to obtain foreign intelligence information.).
 In re Sealed Case, 310 F.3d at 742-745.
 Id. at 743.
 Id. at 733.
 Id. at 743.
 Recognizing the danger in such an approach, the FISCR had specifically articulated that the purpose of a Section 702-type certification should be judged “by the national security official’s articulation and not by a FISA court inquiry.” In re Sealed Case, 310 F.3d at 736.
 857 F.3d 193 (4th Cir. 2017).
 Id. at 204.
 U.S. v. Mohamud, 2014 WL 2866749, at *11-12 citing Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978).
 See U.S. v. Mohamud, 2014 WL 2866749, *12-*27 (applying Fourth Amendment standards with “scrupulous exactitude” and concluding that Section 702 collection is reasonable under the Fourth Amendment).
 See Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv.J.L. & Pub. Pol’y at 133 (discussing NSA’s broadened definition of ‘facility’).
 50 U.S.C. § 1801(a)-(o).
 50 U.S.C. § 1881(b)(1)-(5).
 See, e.g., 154 Cong. Rec. S6379 (daily ed. July 8, 2008) (statement of Sen. Cardin) (“Congress must indeed make changes to FISA to account for changes in technology and rulings from the FISA Court involving purely international communications that pass though telecommunications routes in the United States.”); 154 Cong. Rec. H5767 (daily ed. June 20, 2008) (statement of Rep. Pelosi) (“[W]e all recognize the changes in technology necessitate a change in the legislation, and this legislation today modernizes our intelligence-gathering system by recognizing and responding to technological developments that have occurred since the original FISA Act in 1978.”).
 See, e.g., November 2016 Joint Assessment at 27-51 (detailed review and analysis of compliance issues and incidents during the reporting period).
 PCLOB Report at 2, 11.
 Office of the Director of National Intelligence “Fact Sheet” relating to the “Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) – 13th, 14th and 15th Joint Assessments” at 1 available at www.dni.gov//Overview_Fact_Sheet.
 PCLOB Report at 10.
 Robyn Greene, OTI’s Reform Priorities for Section 702 of the FISA Amendments Act, at 2, Open Technology Institute (May 2, 2017).
 See e.g., President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” Report, pp. 144-145 (Review Group is briefed on 53 counterterrorism investigations since 2007 that utilized Section 702 information in the prevention of terrorist attacks in diverse nations and the United States.).
 “Jeff Sessions urges Congress to reauthorize FISA ‘promptly’,” Washington Examiner, Sept. 12, 2017