​Section 702 - A Crude But Necessary Balancing Act

Section 702 will almost certainly continue life unaltered in any meaningful way by any amendments. That’s the emerging consensus on Capitol Hill apparently.

What the heck is Section 702 you ask?

It is part of the FISA Amendments Act which itself - as the name suggests - amended the Foreign Intelligence Surveillance Act in 2008. It was set to expire in 2012 but was extended for five more years and now expires on December 31st of this year. Section 702 is basically an authorization for the U.S. government (i.e. the intelligence agencies concerned) to spy on any electronic communications involving foreigners that take place abroad. Even if those communications also involve U.S. citizens.

All told, this is not an outrageous expansion of surveillance, especially if it involves issues or situations or people of interest that concern national security. If a suspected ISIS member is chatting with an American somewhere overseas you would presumably want the NSA or the CIA or whoever else to find out as much as possible about these communications, including information about the U.S. citizen involved in those communications.

But privacy advocates within and without Congress are alarmed. Specifically the battle over the reauthorization of Section 702 revolves around the following point:

Should section 702-derived data (any voice, message, or other data intercepted by U.S. intel) that involves an American citizen require a court order, or warrant in other words, before being analyzed and investigated? Currently it does not, and almost certainly won't require a court order in the reauthorized legislation. But privacy advocates want to go a step further.

They want a warrant before intel officials can look at any of the data, never mind look into any data that directly involves a U.S. citizen.

Is this type of warrant a reasonable defence of privacy against an invasive administrative state, which the intel community forms part of in the eyes of many libertarians and progressives? Or is Section 702 a necessary expansion of the powers of the state in the ongoing war against radical islamic and other forms of terrorism?

One suspects that there are not many issues where Senator Patrick Leahy agrees with members of the House Freedom Caucus. This is one of them, however.

The main question here is how difficult, timely, and accurate intel gathering would be made by requiring warrants to just look at the data. And if such a requirement would indeed burden intel gathering and allow bad actors to evade the authorities, what certainty does a warrant issued at 2 AM by a FISA court judge (or any other judge) give a privacy advocate that somehow citizen's privacy is truly protected?

Yes, warrants are a key judicial tool against unreasonable search and seizure. Something that p'ed off more than a few colonists some 200-odd years ago. And warrants are therefore a fundamental safeguard against one of the most hated privations suffered by those colonists, along with taxation without representation. They go to the heart of the republic's founding.

That said, are they effective in the context of constant, rapid, and overwhelming flows of data that the intel community has to monitor to keep America safe? What exactly is privacy in our post-industrial information-based society?

Consider this question: are you a customer of Google? Or are you a product? You and I are most likely the latter. Our search habits and the countless data points we generate every day are mined, analyzed and resold by Google to their clients. Should Google get a warrant to analyze your search habits and allow targeted ads or political ads or perhaps surveillance to take place?

There's not enough judges in all the countries in all the world to truly offer you and I true privacy protection from Google. There are, however, sufficient judges to protect you from an intel officer analyzing an email exchange you had with a Turkish businessman, for example. The question is, how much protection do you want from potential spying on you by your own state's intel community, and how much protection do you want in terms of spying on possible bad actors? And is it really a binary choice, a balancing act, between the two?

Section 702 will most likely be reauthorized. But the problems it raises remain and demand scrutiny and reflection. Because America's safety and Americans privacy are both matters of grave concern. For now, a crude balancing act between the two seems to be the best we can do.

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