The issue of spying has been a big one in the United States, basically since the country’s inception. With technology, the government’s ability to spy on Americans’ communications has brought this already extremely concerning topic to another level.
At the heart of current concerns is something called Section 702, which is set to expire at the end of the year, and which lawmakers are desperately working to save.
The 702 program—so named for its statutory source, Section 702 of the Foreign Intelligence Surveillance Act (FISA)—allows the government to warrantlessly surveil the communications of foreign citizens “reasonably believed” to be overseas. While intelligence analysts cannot target legal US residents, they can and often do acquire the communications of Americans in contact with foreign surveillance targets. Section 702 targets are not limited to terrorists and criminals, and may include, for example, foreign officials, diplomats, and journalists—anyone whose calls, texts, or emails are believed to have intelligence value.
The 702 program cannot explicitly target American citizens, as we are technically protected by the Fourth Amendment, which prohibits unreasonable searches and seizures. Of course, there is already some debate over what qualifies as “unreasonable” but usually at play is the presence of a warrant. But the government can get information without a warrant through what we now call upstream and PRISM powers, by asserting relevance to foreign surveillance.
These are two types of surveillance that can be used to essentially spy on us while technically obeying the law. Upstream surveillance refers to communications that travel across the internet. PRISM surveillance refers to receiving communications from bigger companies such as Google or Facebook.
Congress is supposed to renew Section 702 every couple of years, and it is set to expire at the end of 2023. The last time it was renewed was in 2018. Critics are particularly concerned about something called “about collection” which was ended by NSA in 2017 because it was so heavily criticized by the Foreign Intelligence Surveillance Court. “That term refers to the NSA’s searching through the Internet traffic to collect not only communications to or from an intelligence target but also those that simply mention an identifier used by a target,” writes the Electronic Frontier Foundation.
The organization explains:
The agency wasn’t just checking to see if the selector, like an email address, was in the “to” or “from” fields. It was searching the complete communication to see if a communication mentioned the selector at all. That’s like reading not just the address and return address on the outside of an envelope, but actually opening the envelope to read the contents of the letter inside.
Civil liberties advocates have always been extremely troubled by this “about” collection because it expanded the scope of NSA’s warrantless surveillance. But the NSA defended the practice, saying that it had no way, technologically speaking, to get its hands on the communications it was allowed to search without reading through the content of all the communications it collects.
Not everyone sees the big problem with 702. Most Americans may not even be impacted by the renewal of this program, as we do not have any contact ever with someone living overseas. Also, there are real dangers to our national security that the government has an interest in trying to intercept. However, our government has never been shy about privacy invasions. And regulation of the internet and other technological advancements is also always so far behind the actual technology itself. A lot of this feels like letting the government write itself a blank check.
We will have to wait and see if 702 is renewed, but one way politicians could sneak it through is to attach it to the National Defense Authorization Act, and WIRED’s sources say some members of Congress are planning to do just that. This act is a critical vote for Congress as it sets the annual funding for the Pentagon. No one wants to stall this important piece of legislation. Attaching 702 would require a straightforward up-or-down vote without a lot of debate, which is wild for something as complex and contentious as spying and intelligence gathering. At the end of the day, section 702 just highlights the continuing fine line we draw between privacy and protection.
(featured image: sorbetto/Getty Images)
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