Section 702 and FISA

Section 702 and FISA
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Section 702 of the Foreign Intelligence Surveillance Act (FISA) differs from other surveillance authorities in several key ways:

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  1. Targeting and Warrant Requirements: Section 702 allows the U.S. government to conduct targeted surveillance of non-U.S. persons reasonably believed to be located outside the U.S. without a warrant[1][2][4]. This contrasts with other surveillance authorities, such as traditional FISA and criminal wiretap warrants, which require a warrant based on probable cause[4].
  2. Scale of Collection: Section 702 permits large-scale collection of communications, which can result in a significant increase in incidental collection of data[4]. This is different from other authorities like FISA Title I and the Wiretap Act, which are used for more discreet, targeted collection[4].
  3. Purpose of Surveillance: The significant purpose of collection under Section 702 is to obtain foreign intelligence information[4]. This can include a broad range of internet and cellular communications by non-U.S. individuals[1]. Other surveillance authorities may have different purposes, such as investigating specific crimes[4].
  4. Incidental Collection of U.S. Persons' Communications: While Section 702 is intended to target non-U.S. persons abroad, it can also incidentally collect communications of U.S. persons who correspond with the targeted individuals[1][2]. This incidental collection is subject to minimization procedures to limit the acquisition and retention of non-targeted information[4].
  5. Lack of Individualized Judicial Review: Unlike other surveillance authorities, Section 702 does not provide a judicial process to review the targeting of persons on an individual basis[8]. Instead, the surveillance is based on "selectors" such as email addresses or cell phone numbers associated with non-U.S. persons[8].
  6. Backdoor Searches: Section 702 data can be queried by U.S. agencies, including the FBI, for information relating to U.S. persons, a practice often referred to as "backdoor searches"[2]. This practice has raised privacy concerns and is not typically associated with other surveillance authorities[2].
  7. Oversight and Transparency: Section 702 is subject to oversight by the Privacy and Civil Liberties Oversight Board (PCLOB) and has seen a significant amount of declassified and publicly released information related to its operation[5]. This level of oversight and transparency may not be present in other surveillance authorities.
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It's important to note that while these differences exist, the use of Section 702 and other surveillance authorities can overlap, and reforms to one could impact the use of others[2]. For example, if Section 702 were reformed in isolation, intelligence and law enforcement agencies might rely more heavily on other authorities that have even fewer protections[2].


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