from Net Politics and Digital and Cyberspace Policy Program

New Cyber Brief: Reforming the U.S. Section 702 Intelligence Program

A man uses headphones while working at Argentina's Agency for Communications within the ministry of jusitce on July 14, 2016. Marcos Brindicci/Reuters

Laura K. Donohue argues that section 702 of the U.S. Foreign Intelligence Surveillance Amendments Act is an important tool in the intelligence community’s arsenal, but that it should be amended to bring it within constitutional bounds.

June 26, 2017

A man uses headphones while working at Argentina's Agency for Communications within the ministry of jusitce on July 14, 2016. Marcos Brindicci/Reuters
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The Digital and Cyberspace Policy Program has launched a new Cyber Brief. This one makes the case to reform the U.S. section 702 intelligence collection program and is authored by Laura K. Donohue, professor at Georgetown law school and amicus curiae for the U.S. Foreign Surveillance Intelligence Court.

On December 31, 2017, section 702 of the 2008 Foreign Intelligence Surveillance Amendments Act (FAA) will expire. Section 702 governs the domestic interception of foreigners’ communications, when the targets are believed to be outside the United States. Although externally directed, this statute is being used by agencies to monitor, collect, and search U.S. citizens’ communications for foreign intelligence and criminal activity.

Controversy marks the renewal debate. The Director of National Intelligence (DNI) states that the interception powers are vital to the intelligence community’s ability to protect the United States from foreign threats. In contrast, civil liberties organizations consider the current use of section 702 to be unconstitutional. These groups, along with legal analysts and members of Congress, criticize the sheer number of Americans whose communications the NSA collects—a figure that privacy advocates estimate to be in the tens of millions.

Donohue argues that section 702 is an important tool in the intelligence community’s arsenal, but that it should be amended to bring it within constitutional bounds. She makes the case that section 702 violates citizens’ rights, creates a situation ripe for abuse, and undermines the balance of power between the branches of government. Donohue recommends Congress use the renewal of section 702 to restrict the NSA’s ability to obtain certain kinds of information and to retain citizens’ communications; require intercepts be for foreign intelligence purposes; prevent section 702 intercepts from being used to find evidence of ordinary criminal activity; and prohibit collection of communications about (not just to or from) targets.

You can find the full brief here.

More on:

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