A Quick Guide to the Laws Governing NSA Surveillance

By Elizabeth

As we’ve shared in previous posts, the AALL Government Relations Office (GRO) has been working closely with key allies on Capitol Hill to support several Congressional efforts for greater transparency, privacy protections, and government oversight in the wake of the recent revelations about the National Security Agency’s (NSA) domestic surveillance programs.

We now know the NSA gathers intelligence under Section 702 of the FISA Amendment Act, and declassified court opinions show the NSA gathers tens of thousands of “domestic communications” by and from Americans in its normal gathering of foreign communications. Under Section 215 of the USA PATRIOT Act, the NSA also performs bulk collection of telephone metadata.

What are the differences between Sections 702 and 215 and how are they being used to conduct surveillance? While we haven’t learned much about the FISC’s legal interpretation of these two key provisions, here’s a brief guide to what we do know: 

Section 702

Title VII, Section 702 of the Foreign Intelligence Surveillance Act (FISA), “Procedures for targeting certain persons outside the United States other than United States persons” (50 USC § 1881a)

  • Allows for targeting of communications of foreign persons located abroad for foreign intelligence purposes
  • Must have appropriate and documented foreign intelligence purpose for the acquisition and foreign target must be reasonably believed to be outside the United States
  • Cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States; cannot be used to target a person outside the United States if the purpose is to acquire information from a person inside the United States
  • Subject to annual review of “certifications” jointly submitted by U.S. Attorney General and Director of National Security which define the categories of foreign actors that may be targets and include specific targeting and minimization procedures
  • Department of Justice and Office of the Director of National Intelligence conduct on-site reviews of targeting, minimization, and dissemination decisions at least every 60 days

Section 215

Section 215 of the USA PATRIOT Act of 2001, which amended Title V, Section 501 of the Foreign Intelligence Surveillance Act (FISA), “Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations” (50 USC § 1861)

  • Used to justify collection of telephone metadata; does not acquire content communication, the identity of any party to communication, or any cell-site locational information
  • Metadata stored in repositories within secure networks, must be uniquely marked, and can only be accessed by a limited number of authorized personnel; metadata not reviewed and minimized must be destroyed within 5 years
  • Metadata may be queried only when there is reasonable suspicion, based on specific and articulated facts, that identifier used as basis for query is associated with specific foreign terrorist organizations; basis must be documented in writing in advance
  • Government must file report describing  implementation of the program to FISC every 30 days, including application the Reasonable Articulable Suspicion (RAS) standard, number of approved queries and the number of instances that query results that contain U.S. person information were shared outside of NSA
  •  FISC reviews and must reauthorize the program every 90 days

Stayed tuned to the Blawg for the updates on our efforts and visit our 113th Congress Bill Tracking Chart for the latest progress on pending legislation.

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