Section 702 May Be the Most Important Law You've Never Heard Of

Not many people concern themselves with Section 702 of the Foreign Intelligence Surveillance Act, or FISA. And yet, the little-known surveillance authority is a key cog in the U.S. national security apparatus. In early December, Congress finally agreed to a silver lining and extended Section 702 until April. Up until now, the surveillance authority was renewed every five years for five years. The renewal gives a much-needed breath of fresh air to the Intelligence Community.

First enacted in 2008, Section 702 has stirred controversy mainly because some perceive that it gives mass surveillance authorities to the Intelligence Community. The Snowden Leaks in 2013 only added fuel to the fire.

One of the biggest arguments against reauthorizing Section 702 is government abuse. Indeed, one of the main questions in the Section 702 reauthorization debate is whether legal and oversight safeguards around the statute have worked adequately since the previous authorization in 2017. A second question is whether the statute is relevant anymore. The Global War on Terror (GWOT), after all, has largely ended, and great power competition with near-peer adversaries, such as China and Russia, is the national security priority.

WHAT EXACTLY IS SECTION 702?

Section 702 is a targeted intelligence collection authority under FISA that allows the Intelligence Community to collect, analyze, and disseminate foreign intelligence that pertains to national security threats. 

The current version of Section 702 is only used to target non-U.S. persons to collect foreign intelligence when there is a reasonable suspicion that they are outside the U.S. and that they will communicate or receive foreign intelligence.

FISA defines a “U.S. person” as a U.S. citizen, lawful permanent resident, unincorporated group substantially comprised of U.S. citizens of lawful permanent residents, or a private organization incorporated in the U.S. that does not have an association with a foreign power.

It is important to highlight that U.S. persons, or anyone in the U.S., cannot be targeted under Section 702 – the Intelligence Community has other means to collect intelligence on targets of counterintelligence investigations. Moreover, Section 702 prohibits reverse targeting, or collecting intelligence on a non-U.S. person located outside the country if the objective is to collect on a U.S. person or anyone within the United States.

Related: These are America’s top military intelligence-gathering operations

THE BENEFITS OF SECTION 702

Collection gathered under Section 702 does not require a warrant or decision by the Foreign Intelligence Surveillance Court, or FISC, a specialized court established to monitor the activities of the Intelligence Community. As such, Section 702 offers the Intelligence Community an alternative and more flexible option than the standard FISA approach to collect signals intelligence. This is particularly important when it comes to counterterrorism operations when timely intelligence has the potential to prevent catastrophic attacks. 

By enacting Section 702 in 2008, Congress recognized that more and more threat actors were using U.S. electronic communication service providers to communicate. Collecting on this intelligence treasure trove required something more efficient and modern than the Title I of FISA. Under Title I, an intelligence agency has to apply for and receive a warrant from FISC to collect on a target. These applications require extensive work by intelligence lawyers (the detailed paperwork can run in the hundreds of pages). As a result, this venue cannot keep up with the bulk collection of tens of thousands of communications daily. Enter Section 702. 

Section 702 is very much relevant today. The Intelligence Community uses it for both counterterrorism and foreign intelligence collection. According to the National Security Agency (NSA), in 2022, approximately 20 percent of its intelligence products contained Section 702 information. Moreover, Section 702 enables signals collection from other authorities, and all of the presidential intelligence priorities reported by the NSA in 2022 were supported directly or indirectly by Section 702 intelligence.

Section 702 is vital to U.S. national security. To be sure, it can always become better and more transparent, but the surveillance authority does help stop bad guys from hurting U.S. citizens at home and abroad.

About the Author 

Stavros Atlamazoglou is a seasoned defense journalist specializing in special operations and national security. He is a Hellenic Army veteran (national service with the 575th Marine Battalion and Army HQ). He holds a BA from the Johns Hopkins University, an MA from the Johns Hopkins’ School of Advanced International Studies (SAIS), and is pursuing a J.D. at Boston College Law School.

This article was first published by Sandboxx News.