25.4 - Update: What's wrong with Section 702 of FISA

Update: What's wrong with Section 702 of FISA

Last week, I reported on the Not Good News that the reactionaries in Congress want to make Section702 of FISA, the Foreign Intelligence Surveillance Act, a permanent part of US law. As of now, that section is supposed to expire the end of this year.

I also noted how Section 702 is the part of FISA that "allows the NSA to sink its hooks directly into the infrastructure of ISPs and just suck up all the internet traffic passing through that point," which means including the content, and the threat to privacy that represents.

I wanted to update that a bit with some additional information about the threat Section 702 presents that I didn't cover then, which is the danger presented through the domestic use of the data that is gathered.

The first thing is that under Section 702 the targets of NSA spying are supposed to be limited to non-US persons living outside the US - but those targets do not have to be terrorists or criminals or even be suspected of any crime.

According to Sarah St.Vincent, a researcher at Human Rights Watch,

as long as "a significant purpose" of the surveillance is to obtain "foreign intelligence information," a term FISA defines broadly, any non-U.S. person outside the country's borders is fair game. In 2016, the government had an estimated 106,469 such targets.

What's more, it is essentially unarguable that such surveillance will suck up a lot of data about US citizens. The government calls this seizure of personal information "incidental," but "incidental" does not mean it is accidental or inadvertent; in fact it is neither. All "incidental" means is that it is not the supposedly primary focus, that those people whose information is gleaned are not the targets of the surveillance.

Here's where it gets extra good. The FBI has the authority to "query" that data, the data the NSA has amassed and stored about US citizens, data which the NSA insists it doesn't look at but which it stores all the same. In 2016, David Medine, at the time chair of the Privacy and Civil Liberties Oversight Board, told the Senate Judiciary Committee that the FBI made such queries "routinely," even at the "assessment" stage, that is, before an actual investigation even starts, the point at which the FBI is thinking about if there is even a case to be investigated. Medine described the agency as being "sort of entitled to poke around and see if something is going on."

Amy Jeffress, who served as an impartial adviser to the Foreign Intelligence Surveillance Court, said that court described such queries as "routine and encouraged" and she added that "there is no requirement that the matter be a serious one, nor that it have any relation to national security."

Put more directly, through Section 702 the FBI can and does engage in warrentless searches of warrantlessly-gathered information and do it without any requirement of even a suspicion of wrongdoing. And before anyone tries to jump in by saying the NSA acted with a warrant from the FISC, that warrant would refer to the target of the surveillance - which means that all that "incidental" data on Americans, the very data the FBI is querying, was gathered without a warrant.

And if they miss something, there's a backup: The NSA can share with the FBI or other law enforcement agencies any data which it "reasonably believe[s] to contain evidence of a crime."

In fairness, there isn't a lot of evidence that the FBI has been using this option to pursue cases that did not involve "foreign intelligence information," but leaving aside the troubling implication that as soon as the words "foreign intelligence" or "national security" are invoked, Constitutional rights are supposed to go out the window, the equally troubling fact is that if the FBI has been milking the NSA's database for information on domestic crimes, we might never know.

The practice is called "parallel construction" and it involves taking information obtained either through such a warrantless search or by a tip from the NSA and using it to create a separate investigation, using the information you gained to "find out" what you in fact already knew, or even just to create a different investigatory trail, dating the investigation as starting sometime after the tip and not because of it - and in either case just pretending the NSA database had nothing to do with it. In other words, lying to everyone - prosecutors, judges, defense attorneys, juries, everyone - about the source of the info.

Here's the bottom line: Even if you want to insist that no one has actually done anything wrong here, that the fears have - thus far - been overblown (which again, there's no way to really know), but even if you are prepared to insist that, are you prepared to make the guarantee about all the future years, all the future FBI directors and agents, all the future NSA directors and spooks, all the future NSCs, all the future administrations, White houses, Justice Departments? Are you prepared to guarantee complete, on-going scrupulous adherence to the highest ethical standards on the part of everyone involved, now and  indefinitely into the future?

Section702 should be stopped. It should be allowed to die. I say again what I said last week: If your reps in Congress won't agree to at minimum actively oppose making Section 702 permanent, they do not deserve to be in Congress; they do not deserve to claim the mantle of representative of a free people.