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The NSA's foreign surveillance: 5 things to know

Grant Gross | March 15, 2017
The main authority for the agency's foreign surveillance programs expires at the end of the year, and some people want to rein it in

Doss and other defenders of Section 702 surveillance say that it's targeted, not so-called "bulk" surveillance. But the descriptions of both Prism and Upstream from the Snowden leaks and subsequent government descriptions suggest the surveillance is widespread. The intelligence community has long argued the legal definition of "bulk" surveillance is very specific. 

The NSA also collected U.S. telephone records for several years under a separate program.  The NSA and the FBI pointed to a different provision of FISA, Section 501, as authorization for the controversial metadata collection program. Congress curtailed the phone metadata collection program in the USA Freedom Act, passed in mid-2015. 

 

Prospects for extending Section 702

Congress is certain to extend the surveillance authority in some form, even though many tech companies and privacy groups are pushing lawmakers to rein in the NSA’s surveillance programs, both in the U.S. and abroad.

Most lawmakers see value in extending Section 702, although many Democrats and some Republicans have talked about ending or limiting the ability of the FBI and other intelligence agencies to search for U.S. communications swept up in the surveillance.

Given that Section 702 is one of the main authorizations for the NSA to conduct foreign surveillance, not even the most ardent privacy advocates believe Congress will let the provision expire.

 

Backdoor searches of U.S. communications

 Section 702 prohibits the NSA from targeting people inside the U.S., but the agency, in "incidental" collection, gathers information from U.S. residents who are communicating with the agency’s overseas targets.

The law then allows the FBI and other intelligence agencies to search those U.S. communications for evidence of crimes, including crimes not connected to terrorism. Many digital rights groups, along with some lawmakers, want to end this so-called backdoor search of Section 702 records.

This collection of U.S. communications without a warrant is, "in a word, wrong," Representative John Conyers Jr., a Michigan Democrat, said during the March 1 hearing.

 Details about the incidental collection are fuzzy. Going back to 2011, lawmakers have repeatedly asked for numbers of U.S. residents affected but have received no details from the ODNI.

 

Expansive collection of foreign communications 

In addition to the incidental collection of U.S. residents' communications, privacy advocates complain about an expansive surveillance of foreigners allowed under Section 702.

The provision allows the NSA to collect foreign intelligence information from "anyone" outside the U.S. not just suspected agents of foreign powers, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "Intelligence information" is also defined broadly, he said.

"Once you remove that, it's open season on many foreigners who pose no threat to U.S. national security," he added.

 

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