A general view of the U.S. Federal Bureau of Investigation (FBI) building in Washington, DC.

© 2017 Reuters

Section 702 of the US Foreign Intelligence Surveillance Act (FISA), a warrantless surveillance law that underpins two massive internet and telephone monitoring programs, will expire on December 31, 2017, unless Congress renews it. The law enables the National Security Agency, the Federal Bureau of Investigation, and other US bodies to gather and/or search private communications without a warrant. This surveillance affects people both within the United States and in other countries.

What is Section 702 surveillance?

Section 702 of FISA allows the US government to spy on the internet and telephone communications of people both in the United States and abroad without a warrant so long as a “significant” purpose of the surveillance is to gather “foreign intelligence information.” It grew out of a George W. Bush-era secret surveillance program that monitored the international communications of people in the United States.

The law currently underpins two of the most sweeping warrantless NSA surveillance programs that collect the substance of communications by people in the US and across the globe. One is PRISM, which enables the National Security Agency (NSA), with the assistance of the Federal Bureau of Investigation (FBI), to gather and store enormous quantities of users’ communications held by internet companies such as Google, Apple, Microsoft, and Facebook. The second program, known as “upstream” scanning, appears to involve automatic government searches of virtually all of the communications that flow over crucial pieces of internet infrastructure that connect the US to the rest of the world.

Originally adopted in 2008 and renewed in 2012, Section 702 will expire on December 31, 2017, unless Congress passes legislation to re-authorize it.

In authorizing massive surveillance programs and failing to put strong safeguards in place to prevent the abuse of these highly intrusive monitoring powers, the law violates the human right to privacy. It also jeopardizes free-expression rights, since people who know the government may spy on them without good reason may be less likely to express or explore controversial views or discuss sensitive personal matters.

Does the government monitor US citizens under Section 702?

Yes. Although the government cannot designate “United States persons” as the “targets” of its warrantless Section 702 monitoring, it can still capture or scan their internet or telephone conversations as part of this surveillance. “US person” is a legal term that includes US citizens and green-card holders as well as some corporations and associations.

By law, the government must adopt “targeting procedures” that are “reasonably designed” to prevent it from gathering communications that are solely between people the intelligence agencies know to be in the United States – or US persons abroad. However, this restriction leaves plenty of legal room for the government to sweep up potentially huge numbers of communications to or from Americans.

The government describes this surveillance of US persons as “incidental,” but it potentially includes a vast number of calls, e-mails, chats, text messages, and other conversations. Executive branch officials have claimed it would not be feasible for them to provide estimates of the size of this “incidental” snooping on US persons, but David Medine, who then chaired the independent Privacy and Civil Liberties Oversight Board, testified before Congress in 2016 that it is “large” and might include “family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges.”

Human Rights Watch and others have highlighted the particular impact this “incidental” surveillance may have on immigrant and border communities in the United States. However, it may affect anyone who uses the internet or takes part in a phone call between the US and another country.

Once the government has gathered data under Section 702 for “foreign intelligence,” the FBI can search it for evidence of a criminal offense – any criminal offense. To do so, it can use search terms that identify or relate to US persons, such as their e-mail addresses. Nongovernmental  groups often refer to these queries using US-person information as “backdoor searches,” since they effectively evade protections imposed by the Fourth Amendment to the US Constitution. Those protections are designed to prevent abuses such as monitoring that is baseless or discriminatory, or that targets people based on their exercise of their free-expression rights.

For years, members of Congress have asked the intelligence agencies to disclose statistics that would help to explain the impact of Section 702 surveillance on Americans, but thus far the agencies have declined to provide such estimates.

Human Rights Watch has posted a separate fact sheet on how warrantless Section 702 surveillance affects people in the US.

What position does Human Rights Watch take on Section 702?

Section 702 contains several basic flaws that make it non-compliant with binding international human rights law. For example, under human rights law, government monitoring of communications must be both necessary and proportionate to achieving a legitimate goal. However, Section 702 gives the executive branch license to conduct extremely intrusive surveillance for a very broad array of potential reasons – and to search through any data it happens to capture, regardless of whether that data has anything to do with the original purpose of the surveillance.

No judge or other independent body ever signs off on the surveillance of specific individuals under the law, a situation that violates rights and increases the risk of other abuses, since executive branch activities are not subject to strict and comprehensive oversight by another branch of government. Some of these flaws are such fundamental characteristics of Section 702 that it is difficult, if not impossible, to envision any version of the law that would respect the rights of people both inside and outside the United States.

For these reasons, Human Rights Watch opposes the renewal of Section 702.

How does Section 702 surveillance work?

To carry out monitoring under Section 702, the government chooses targets, which cannot be people or entities the agencies know to be US persons. While the government is legally prohibited from selecting these targets with the real goal of conducting surveillance of a specific US person, we know little about how the government complies with this prohibition.

The government had an estimated 106,469 targets in 2016 – a 19 percent increase since 2013. An independent expert who analyzed the law in a submission to the Foreign Intelligence Surveillance Court in 2015 told the court that “not all Section 702 targets are international terrorists,” while Medine testified that a Section 702 target might be “a completely innocent businessman.”

The government may conduct its warrantless surveillance under Section 702 for a broad range of reasons. The law specifies only that a “significant” purpose of the monitoring must be to obtain “foreign intelligence information” – a term that is broadly defined and might include, for example, a discussion of a protest march in another country.

The court must approve the government’s targeting procedures as well as “minimization” procedures that are “reasonably designed” to minimize the acquisition and sharing of information about US persons, although the restrictions on the sharing of information identifying US persons have major loopholes. However, the court does not approve the government’s specific targets. In other words, no warrants are involved.

Can the government conduct this surveillance for purposes other than national security?

Yes. The government only needs to be able to show that a “significant” part of the purpose of the surveillance is to gather “foreign intelligence information.” This term is defined broadly and is not limited to matters related to national security.

According to two of the documents disclosed by former NSA contractor Edward Snowden beginning in 2013, the PRISM program has been used for purposes related to narcotics and/or other forms of “trafficking.” Using sweeping Section 702 searches to detect drug, immigration, or other activities in a manner that avoids the restrictions of warrants required by the Constitution would be disproportionate and subvert normal criminal law processes.

Can US law enforcement officers get access to Section 702 data?

Yes. The FBI can gain access to and “query” – that is, search – communications acquired under Section 702 without a warrant and even without any suspicion of wrongdoing. It can carry out these queries using terms associated with US persons, which is one reason an independent review group has alluded to the possibility that the authorities may have an “incentive … to use section 702 in an effort to gather evidence against United States persons in a way that would circumvent the underlying values of both FISA and the Fourth Amendment.”

The FBI may also share the data with other law enforcement bodies if the bureau believes it “reasonably appears to be foreign intelligence information or is necessary to understand foreign intelligence information,” or if it “reasonably appears to be evidence of a crime” – all of which are potentially broad categories.

FISA obligates the government to notify criminal defendants, among others, when it uses Section 702 data or information derived from that data in a trial or other proceeding. However, Human Rights Watch and other experts have expressed concerns that the authorities may be using undisclosed legal interpretations of key terms (such as when criminal evidence is “derived from” 702 surveillance) to avoid giving such notification. The government may also be deliberately creating alternative explanations for how evidence was found – a practice known as “parallel construction” – in order to prevent defendants from discovering the use of Section 702 data as part of the investigations in their cases. This would deprive defendants of the ability to challenge the legality of the surveillance.

Does the government make mistakes under Section 702?

The government not only makes mistakes, but has repeatedly misled the Foreign Intelligence Surveillance Court about its activities under Section 702 – a practice for which the court criticized it in 2011. In April 2017, one of the court’s judges took the NSA to task for an “institutional lack of candor” after the agency failed to inform the court promptly about searches for information about US persons that violated restrictions the court had imposed.

Government and court documents released in 2017 also revealed episodes in which the FBI improperly provided access to Section 702 data to government employees and private contractors who were not authorized to view it, as well as numerous instances in which the NSA or FBI violated court-approved rules designed to protect rights.

What does the government say Section 702 has accomplished?

The government contends that Section 702 has been “vital to keeping the nation safe,” and has revealed several examples in which it says this surveillance has helped to accomplish this goal or has otherwise advanced US interests. However, questions remain about whether the government could have used other means to achieve these aims, as well as whether these examples are truly representative of the purposes for which the intelligence agencies and the FBI use Section 702 data. The government’s selective disclosures in this respect also make its failure to provide estimates of the numbers of US persons affected by Section 702 even more striking.

Ultimately, no examples of the government’s past use of Section 702 can justify activities that violate the constitution or human rights.

What is the EU-US Privacy Shield and how does Section 702 surveillance affect it?

The Privacy Shield is a decision by the European Union’s executive branch that makes it legal for internet companies such as Facebook, Google, and Amazon to transfer users’ personal data from the EU to the US, and therefore has major commercial implications. The decision is based on a finding that the US provides adequate protections for privacy and other fundamental rights that are relevant in this area.

Since Section 702 and certain other important US surveillance authorities fall far short of human rights standards, Human Rights Watch and Amnesty International have concluded that the Privacy Shield is invalid