82 Pages Posted: 23 Mar 2017 Last revised: 2 May 2017
Date Written: December 15, 2016
The rising globalization of terrorist organizations and their ever more sophisticated abilities to reach people throughout the world has deepened the threat of terrorist activities in the United States and abroad. In light of these growing threats, both at home and overseas, the United States must ensure that our country has the necessary legal authorities to anticipate and counter them. One such vehicle for providing the United States with these critical legal tools is through strengthening Section 702 of the FISA Amendments Act (FAA). The FAA, including Section 702, is scheduled to sunset in December 2017. Some advocates contend that Section 702 should be renewed with tighter constraints placed upon executive branch authorities. Others emphasize the vital contribution that Section 702 has made in preventing “terrorist attacks inside the United States and around the world,” and advocate for the renewal of Section 702. In this paper, an alternative view is proposed: Section 702 should be strengthened. Specifically, this paper proposes that certain executive branch authorities should be restored to include the collection of foreign intelligence information on individuals overseas, including U.S. persons, with additional safeguards for information collected on U.S. persons. Moreover, this paper recommends against placing further constraints on the government’s ability to query its own databases that may include Section 702 information.
The paper is divided into five parts. Part I traces the evolution of Section 702. Part II provides an overview of the constitutional parameters for the collection of foreign intelligence information. It highlights the tension between the President’s constitutional mandate under Article II of the U.S. Constitution, e.g., protecting U.S. national security interests, and the Fourth Amendment’s requirement of prohibiting unreasonable searches and seizures by our government. Part III provides a framework for strengthening Section 702 and restoring certain executive branch authorities to where they had been prior to the 2008 FAA. Part III also analyzes how the suggested changes to Section 702 are consistent with the mandates of the Fourth Amendment and protect U.S. person privacy interests. Part IV addresses a recently proposed change to Section 702, namely placing constraints on the government’s ability to query data collected under Section 702. Part IV contends that current safeguards for querying information are adequate and recommends against placing further constraints on the government’s querying capabilities. Finally, Part V applies the concepts set forth in Parts III and IV of this paper to a hypothetical scenario. In doing so, Part V endeavors to show the national security value of these recommendations and how U.S. privacy interests remain protected.
Keywords: national security, section 702, FISA, FAA, intelligence, tool, law, legal, surveillance
JEL Classification: H56, H50, K19, K40
Suggested Citation: Suggested Citation
Sills, Deborah Samuel, Strengthen Section 702: A Critical Intelligence Tool Vital to the Protection of Our Country (December 15, 2016). National Security Law Brief, Vol. 7, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2938667