Section 702 of the Foreign Intelligence Surveillance Act
Section 702 refers to part of the Foreign Intelligence Surveillance Act (FISA) Amendments of 2008, Section 702 (50 USC 1881a). This provision of FISA faciliates the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States, creating a new, more streamlined procedure to collect the communications of foreign terrorists.
Limited Targeting Under the Law
The Government cannot target anyone under the court-approved procedures for Section 702 collection unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition and the foreign target is reasonably believed to be outside the United States. Section 702 cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States. Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information from a from a person inside the United States.
How Data is Obtained and Used
Section 702 involves the assistance of electronic communications service providers, a dynamic that is explicitly laid out in the statute itself. However, under Section 702 of FISA, the United States Government does not unilaterally obtain information from the servers of U.S. electronic communication service providers. All such information is obtained with FISA court approval and with the knowledge of the service provider based upon a written directive from the Attorney General and the Director of National Intelligence.
Oversight, Compliance and Minimization
Collection under Section 702 does not require individual judicial orders authorizing collection against each target. Instead, the FISA court approves annual certifications submitted by the Attorney General and the Director of National Intelligence that identify categories of foreign intelligence that may be collected, subject to Court-approved “targeting” procedures and “minimization” procedures.
Activities authorized by Section 702 are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. They involve extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.
Status of the Law
Section 702 was recently reauthorized by Congress after extensive hearings and debate.
- Hearing of the Senate Judiciary Committee on Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs
- Privacy , Technology & National Security - An Overview of Intelligence Collection — Robert S. Litt, ODNI General Counsel