FISA Section 702: Does Querying Incidentally Collected Information Constitute a Search Under the Fourth Amendment?
An inherent source of conflict in the United States exists between protecting national security and safeguarding individual civil liberties. Throughout history, Americans have consistently been skeptical and fearful of the government abusing its power by spying on Americans. In an effort to curtail government abuses through surveillance, President Carter and Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA). The purpose of FISA was to establish a “statutory procedure authorizing the use of electronic surveillance in the United States for foreign intelligence purposes.” FISA provides the government with the authority to engage in electronic surveillance, targeted at foreign powers or agents of foreign powers, for the purpose of gathering foreign intelligence information. FISA initially permitted certain surveillance activities, almost all of which occurred within the United States, but excluded the vast majority of overseas foreign intelligence surveillance activities.
Following 9/11, the government’s interest in surveilling terrorists was at an alltime high. However, no authority existed under the current statutory scheme of FISA to surveil suspected terrorists and their communications with Americans without prior approval from the FISA Court. In 2005, President Bush, relying on his Commander-in-Chief power and authorization under the Authorization for Use of Military Force Act, enacted the Terrorist Surveillance Program allowing the National Security Agency (NSA) to conduct surveillance and collect information without warrants. Under this program, one of the individuals being surveilled had to be a suspected terrorist, and one was required to be located outside the United States. However, the lack of warrants raised many concerns regarding individual privacy rights and civil liberties. In response, Congress enacted section 702 in July 2008 as part of the FISA Amendments Act (FAA). Section 702 broadened the scope of FISA allowing the government to conduct foreign intelligence surveillance outside the United States without an individualized application for each target. The FAA garnered bipartisan support, notably from then-Senator Obama in 2008 and more recently former FBI director Christopher Wray, who stated section 702 is “one of the most valuable tools that we have in our toolbox to keep America safe.” Additionally, section 702 has proven commendable as a vast number of terrorist plots have been foiled through use of information obtained under section 702. For example, information obtained under section 702 led to the arrest of Najibullah Zazi, a U.S. citizen living in the United States, for his role in an al-Qaeda plot to carry out suicide attacks on the New York City subway system.
However, during the process of collecting information from foreign targets, it is evident that collection of U.S. persons’ information—not permitted to be intentionally obtained—may still be collected if a U.S. person is in contact with the intended foreign target. Concerns regarding incidental collection of U.S. persons’ communications under section 702 surveillance began to grow.14 Critics argued that collection of U.S. persons’ communications violated the Fourth Amendment because it was a warrantless search. Nevertheless, courts have upheld the constitutionality of incidental collection and asserted that the collection is not a violation of the Fourth Amendment. While the concerns regarding incidental collection have subsided, a new Fourth Amendment challenge has presented itself. Information that has lawfully been obtained through section 702 surveillance, including information that has been incidentally collected, can later be “queried” or searched by intelligence agencies. When the government conducts queries, they are able to access the contents of 702-acquired information and may be able to use the subsequently obtained information as evidence in unrelated criminal proceedings. Importantly, however, section 702 includes many comprehensive safeguards protecting the privacy interests of U.S. persons. Likewise, the Privacy and Civil Liberties Oversight Board (“PCLOB”)—a bipartisan oversight agency within the executive branch—found that section 702 is subject to extensive oversight and further concluded there was “no evidence of intentional abuse.”
This Note poses the question of whether subsequent queries conducted on incidentally collected section 702 communications constitute searches under the Fourth Amendment and therefore require a warrant. Part I discusses traditional FISA and provides background on protections that have been implemented to assure individual liberties. Part II discusses the FISA amendments and the specifics of section 702, including the newly implemented querying procedures. Part III addresses Fourth Amendment concerns regarding incidental collection and subsequent querying of U.S. persons’ information. Part III additionally analogizes the constitutionality of queries conducted on section 702 information to similar searches done within DNA databases that are subsequently able to be used in unrelated criminal prosecutions. This Note concludes by suggesting that subsequent queries, including on incidentally collected information, are consistent with the Fourth Amendment. Further, because queries are constitutional under the Fourth Amendment, and several procedural restrictions are in place, the FBI may use queried section 702 information to bring criminal charges, unrelated to national security, against U.S. persons.
Rachel G. Miller,
FISA Section 702: Does Querying Incidentally Collected Information Constitute a Search Under the Fourth Amendment?,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol95/iss3/2