A Quick-Reference Guide to Understanding the Legal Debate About Electronic National Security Surveillance (and How to Spot Imposters Trying to Muddy the Waters)
An issue that has surfaced in reaction to Special Counsel John Durham’s report on the FBI’s handling of Crossfire Hurricane is the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire in December of this year. But that connection – drawn from the report to the surveillance program – reflects a confusion and conflation. The two events – the content of the Durham report and the 702 surveillance program – have little, or nothing, to do with each other. This widespread misunderstanding, and the deeper confusion it reflects, threatens to pollute the needed democratic debate and sober consideration of whether to reauthorize or reform one of the most important but controversial tools in the U.S. national security arsenal.
To be sure, Durham’s report reminded us of the many errors highlighted by the Justice Department Inspector General Michael Horowitz in 2019 regarding the evidence used to obtain a FISA order on Carter Page, a former foreign policy advisor on the Trump campaign. And that’s also where some of the confusion starts. According to Politico, Rep. Jim Jordan (R-OH) has used Durham’s report to argue that Section 702 “cannot be reauthorized as is,” and Rep. Chip Roy (R-TX) has stated that Durham’s report will “absolutely” play a role in the reauthorization debate. Rep. Kelly Armstrong (R-ND), called Durham’s report an “indictment” of Section 702.
The conflation of the reauthorization of Section 702 with Crossfire Hurricane suggests that these members of Congress are, at best, unaware of the details of the program or, at worst, deliberately muddying the waters in an effort that will have the unintended consequence of substantially benefiting our foreign adversaries. It therefore is worthwhile to understand what the Section 702 debate is about, and what it is not about.
Unfortunately, too many journalists – and editors and producers – have fallen prey to these misunderstandings in their own reporting and commentary or have allowed such statements by officials to be published without explaining to readers the logical flaw in making these connections.
The purpose of this short explainer is not to do a deep dive into the minutiae of Section 702 or the legal issues raised by the program, but rather to offer a general, broad-brush view of national security electronic surveillance, and how to differentiate the issues raised by surveillance of U.S. persons (USPERs, a useful acronym adopted by the government) in cases like Crossfire Hurricane from the issues raised by Section 702.
The Carter Page Surveillance Was Conducted Under Title I of FISA, Not Section 702
Let’s begin with a quick primer on FISA. The Foreign Intelligence Surveillance Act was passed in 1978 in response to the abuses in the intelligence community revealed by the Church and Pike oversight committees following Watergate. The framework was created as part of a compromise between the legislative and executive branches on the legal parameters of electronic surveillance conducted for national security (as opposed to criminal) investigative purposes. In accordance with a 1972 Supreme Court case which acknowledged that surveillance conducted for the purpose of obtaining intelligence on foreign powers need not be as onerous as the standard for domestic security surveillance to be reasonable under the Fourth Amendment, FISA creates for foreign intelligence an analogous process to Title III of the Omnibus Safe Streets Act of 1968, which governs the procedure to obtain “wiretaps” for criminal investigations.
Specifically, FISA established a secret court – the Foreign Intelligence Surveillance Court – comprised of 11 (originally 7) Article III judges selected by the Chief Justice of the Supreme Court, who sit in rotation. Unlike requests for Title III criminal wiretaps, which must demonstrate to a neutral magistrate probable cause that electronic surveillance will yield evidence of a crime, applications to the Court under Title I of FISA must demonstrate probable cause that the surveillance target is a foreign power, or an agent of a foreign power, and that a significant purpose of the surveillance is to obtain foreign intelligence information. FISA applications targeted at USPERs acting as an agent of a foreign power have a more stringent probable case standard and narrower time limits than for nonUSPERs and foreign powers (such as foreign terrorist organizations) and agents of a foreign power (such as foreign diplomats). If approved by the FISA Court, the government obtains an order (technically not a “warrant”) to be given to the target’s communication provider to commence surveillance on the target.
The big takeaway here is that applications to directly surveil USPERs are conducted under Title I of FISA, and they are done on an individualized basis – that is, for each person the government intends to surveil, it must submit a separate application to the FISA Court outlining the probable cause that the individual is an agent of a foreign power.
Title I of FISA is the exclusive statutory means through which the government can directly surveil any USPERs within the United States. It is also the exclusive statutory means by which nonUSPERs may be targeted when they are located within the geographical boundaries of the United States. Other provisions of FISA (sections 703 and 704) allow for targeting USPERs when they travel abroad under the same probable cause standard.
Section 702 is Programmatic Surveillance
The evolution of Section 702 of FISA is much more recent than the broader FISA framework, including Title I orders. Section 702 has its roots in the George W. Bush administration, which, following 9/11, engaged in non-court-ordered surveillance of communications where one end of the communication was inside of the United States, and one end was abroad (known as Operation STELLAR WIND). The government carried out this operation despite its being in part, if not wholly, illegal under FISA (though the Bush administration construed it as permissible under its Article II authority). After the New York Times exposed the Bush administration’s program, Congress moved to codify a version of it to bring it under the FISA legislative framework. This was first done temporarily through the Protect America Act in 2007 and then as Section 702 of the FISA Amendment Act in 2008. Since then, Section 702 has been periodically reauthorized, including most recently in 2018.
Section 702 permits the executive branch to conduct electronic surveillance of nonUSPERS who are reasonably believed to be located abroad. Like Title I the aim here is not criminal law enforcement but to obtain foreign intelligence information. Importantly, however, Section 702 does not provide a judicial process to review targeting of persons on an individual basis. Rather, it allows the FISC to “certify” a surveillance program presented to it by the Justice Department and for the FISC to continue to review the overall practice of the program on a periodic basis.
In order to be certified, the Justice Department must detail the following three components of the surveillance program:
- Targeting (whose communications will be obtained and how)
- Minimization (the steps the Justice Department takes to avoid the acquisition, retention, and dissemination of communications of people not intended to be captured)
- Querying procedures (how recipient agencies will search the captured communications)
Once the FISC is satisfied that the procedures comport with the Fourth Amendment and the statute, the program is certified. A key difference here from Title I surveillance is that the FISC is not approving surveillance on any particular individual, but rather, a set of procedures which authorizes the NSA to collect certain communications under the approved procedures, subject to periodic reporting to the FISC. As with Title I, Section 702 surveillance permits the Justice Department to require communications service providers to collect communications under the certified targeting procedures.
So who gets targeted? Section 702 surveillance is not based on particular individuals, but rather “selectors” – email addresses or cell phone numbers – which are associated with nonUSPERs reasonably believed to be located abroad and whose communications are likely to return foreign intelligence information. It is possible that some of the intelligence about Russia’s military movements leaked by Jack Texeira, for example, could have been obtained through 702 surveillance. Of course, communications between members of foreign terrorist organizations located abroad would also be fair game. (See, for example, White House Deputy Homeland Security Advisor Joshua Geltzer’s recent statement, in a Just Security’s podcast interview: “locating the world’s most wanted terrorist last year, I mean Ayman al-Zawahiri, the global leader of al Qaeda, involved 702 collection and of course that enabled us to remove from him the battlefield.”).
So if Section 702 targets nonUSPERs outside of the United States, why is this program so controversial? The main issue concerning USPERs when it comes to Section 702 is not direct surveillance, but rather what is known as “incidental collection.” This means that if, in the course of collecting communications from a nonUSPER reasonably believed to be located abroad (using a selector associated with that person), that person is in contact with a USPER, the USPER’s side of the communication will be captured, even though they were not the intended target. In short, some fraction of the hundreds of millions of communications collected by Section 702 will, by necessity, include a not insignificant number of “incidental” USPER communications.
The main debate in the Section 702 reauthorization is how intelligence agencies – and most importantly, an agency like the FBI with both national security and criminal law enforcement functions – utilize these “incidental” communications. As former NSA litigation counsel George Croner has written, all of the communications collected through Section 702 comprise essentially a database consisting of an undifferentiated, “primordial stew” of information. In order to glean anything of value from it, intelligence agencies must conduct a “query” – that is, seeking inside the database for a particular piece of information. Critics of Section 702 argue that using queries to search this “stew” for information related to USPERs – which has been dubbed “backdoor searches” – particularly for the purposes of criminal investigations, raises Fourth Amendment and policy concerns.
As noted previously, it is beyond the scope of this quick reference guide to explore the merits of this contention. The two-part Just Security series on foreign intelligence surveillance reform offers a detailed summary of the arguments for and against reauthorizing Section 702 as is, or whether there should be additional requirements imposed on the FBI, or the intelligence community more broadly, before the 702 database can be queried for information relating to USPERs. It should be noted that, beginning with the reauthorization in 2018, additional requirements have already been added to FBI queries of the 702 database. Some compliance issues have arisen as a result of those additional requirements, which form the central basis of the current reauthorization debate.
For now, the important point to underscore is that any deficiencies in the Carter Page FISA – highlighted either by the Justice Department Inspector General or John Durham – were not a result of Section 702: It is clear that Page’s surveillance was conducted under Title I of FISA. It may very well be that the flaws highlighted by these reports suggest needed reforms to Title I – such as tightening up the probable cause standard for individual FISAs for USPERs. (Notably, Durham wrote that he was largely satisfied with the DOJ and FBI reforms adopted since the Inspector General revealed the problems with the Carter Page and other Title I applications.) Regardless, such policy recommendations involve a discussion wholly unrelated to the technicalities up for debate with the reauthorization of Section 702.
I should note, in conclusion, that while Jordan and others are using the Durham report to conflate Title I and Section 702 of FISA, this obfuscation is not limited to Republicans. In 2018, when 702 was last up for reauthorization, Senator Elizabeth Warren (D-MA) invoked the warrantless surveillance on Dr. Martin Luther King, Jr. (on the occasion of his national holiday) to oppose Section 702. Of course, as outlined above, the entire FISA framework was implemented precisely to avoid abuses like those against Dr. King and even if he were alive and being targeted today, Section 702 would not apply to him. Such disingenuous or otherwise mistaken objections to Section 702 reauthorization, regardless of which side of the political aisle they come from, do little to advance a meaningful understanding and discussion of how to balance the need to protect the United States from foreign threats with civil liberties concerns in an evolving technological landscape.
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