Scott Forsyth, BridgeTower Media Newswires
The word “incidental” has been in the news lately, as in the federal government may have incidentally collected the communications of Donald Trump and his aides after his nomination. We do not know for sure if the collection occurred, yet there is a good chance it did. How so, you may ask.
You have to start with Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881(a). It permits the attorney general and the director of national intelligence jointly to acquire the electronic communications of individuals who are not “United States persons” and who are reasonably believed to be located outside the United States. “(A) significant purpose of the acquisition (must be) to obtain foreign intelligence information.” Foreign intelligence information ranges from international terrorism and weapons of mass destruction to “foreign affairs.” A U.S. person is a citizen, permanent resident, and most domestic corporations.
The government “may not intentionally target any person known … to be located in the United States.” Similarly, it “may not intentionally target a United States person reasonably believed to be located outside the United States.”
On the other hand, should a person located in the country or a United States person located outside the country communicate with a foreign target, the government may collect, inspect, and keep the contents of the communication. Also, should two non-U.S. persons under surveillance discuss a U.S. person, the government may do the same.
To be personal, if Trump before his election or one of his aides had telephoned, emailed, or texted a targeted person, his communication would have made its way into the government’s database. And if two officials of a foreign power under surveillance had discussed how to approach the president-elect after his election, a very likely scenario, that communication too would have been acquired and saved.
Contrary to the president’s tweets, under Section 702 he does not select the targets. Except in an emergency situation, the attorney general and the director of national intelligence must obtain an order from the Foreign Intelligence Surveillance Court before the government can proceed with the surveillance.
The court supposedly acts as a check on the government. Whether it does so is uncertain. Its proceedings are secret. The government only has to certify that certain “procedures” and “guidelines” are in place and the purpose of the surveillance is to obtain foreign intelligence information. There is no requirement that the government demonstrate probable cause that the person targeted is an agent of a foreign power or actually holds foreign intelligence information.
Three agencies — the NSA, CIA, and FBI — have access to the collected communications for purposes of analyzing them for foreign intelligence information. Each is supposed to adopt procedures minimizing the use, retention, and dissemination of the communications.
In June 2013 Edward Snowden demonstrated the government has amassed a database of millions of communications, of U.S. and non-U.S. persons, which it is regularly mining for information. This activity greatly intrudes upon our privacy for a goal — enhanced security — which is not easy to quantify.
The ACLU challenged the constitutionality of Section 702 twice, once right after the law’s enactment and once after Snowden’s disclosures.
In the first case the Supreme Court held the clients of the ACLU did not have standing to make the challenge. They could not show the government would target their foreign contacts under the section or, if the contacts might be targeted, that the government would collect the plaintiff’s communications with the contacts. Clapper v. Amnesty Inter’l USA, 568 U.S. __ (2013).
The district court dismissed the second case, also for want of standing. Wikimedia Foundation v. National Security Agency, No. 1:15-cv-662 (D. Md. Oct. 23, 2015). The case is now on appeal. Neither court reached the merits of the challenge.
While the courts have not weighed in on the constitutionality of the law, the Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, has. After an extensive review of the law’s operations, in 2014 the Board found the “core” of the law to be reasonable within the totality of circumstances standard under the Fourth Amendment. However, the “unknown and potentially large scope of incidental collection of U. S. persons’ communications” tested the limits of reasonableness, in the opinion of the Board.
The Board made 10 recommendations to reduce the collection of the electronic communications of persons located in the United States and Americans located outside the United States, to limit the analysis of those communications, and to increase the transparency of the program. All may be implemented by the agencies involved.
President Obama did not direct the agencies to do so. Will President Trump do so, in light of his alleged experience of being the target of surveillance or the victim of incidental surveillance under the law?
Section 702 sunsets Dec. 31, 2017. Will the president and his allies in Congress simply seek to extend the law, or will they attempt to curb the law’s use, recognizing its potential to invade the privacy of Americans of all political persuasions?
Hopefully, they will do the latter.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
