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1 Section 702 of FISA: A "Foreign Intelligence" Law Turned Domestic Spying Tool 1 (2023)

handle is hein.brennan/scnofaa0001 and id is 1 raw text is: Section 702 of FISA: A Foreign Intelligence Law Turned Domestic Spying Tool In 2008, Congress passed Section 702 of FISA to give the government greater powers to conduct warrantless surveillance of suspected foreign terrorists. The law allows the National Security Agency (NSA), when collecting information inside the United States or from U.S. companies, to target almost any foreigner abroad and acquire all their communications without an individualized court order. Congress explicitly prohibited the targeting of Americans, and it charged the FISA Court with approving the program and its procedures once a year. Although purportedly targeted at foreigners, Section 702 has become a rich source of warrantless government access to Americans' phone calls, texts, and emails. Since Section 702 was last reauthorized, a series of disclosures has revealed the extent of this problem. In 2022 alone, the FBI conducted over 200,000 warrantless searches of Section 702 communications to find Americans' information.1 This has turned Section 702 into something Congress never intended: a domestic spying tool. Other equally serious problems have emerged. The secret and one-sided nature of FISA Court proceedings has undermined the court's ability to conduct effective oversight, while Congress's efforts to enable other means of judicial review have been thwarted. Gaps in the law are allowing the collection of Americans' communications and other personal information outside of FISA, without any statutory limits or judicial oversight. And Section 702's failure to establish any meaningful limits on the scope of surveillance is threatening U.S. companies' ability to do business in Europe. It's high time for Congress to step in and enact reforms that will safeguard Americans' rights and business interests. The well-documented problems with the law's operation are described in more detail below, along with the solutions. Congress should not reauthorize Section 702 without these critical reforms. Section 702: Problems and Solutions 1. Problem: Use ofSection 702 to Spy on Americans. Surveillance under Section 702 inevitably sweeps in Americans' communications, which ordinarily would require a warrant to obtain. Congress therefore required agencies to minimize the sharing, use, and retention of such incidentally collected information about Americans. Congress also required the government to certify to the FISA Court that it is not engaging in reverse targeting i.e., using Section 702 to spy on Americans. Over the past decade and a half, it has become clear that these critical protections for Americans' constitutional rights have failed. Rather than minimize the sharing and retention of Americans' data, the NSA routinely shares such data with the FBI, CIA, and National Counterterrorism Center, and all agencies retain it for at least five ' Office of the Director of National Intelligence, Statistical Transpareny Report Regarding use of National Secudti Authodties Aniual Statisticsfor Calendar Year 2022, April 2023. ht ;/fIesd'umets/223_A S fr_(Yi2df In addition to the 204,090 query number, this report also includes a de-duplicated query figure of 119,383, which represents the number of unique identifiers used in the queries. The lower number, however, would exclude instances of the same U.S. person being subject to multiple queries such as if a U.S. person's communications are queried by different FBI personnel for independent reasons, or on multiple occasions over the course of an investigation to find any new communications-even though each query would represent a distinct privacy intrusion. 1

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