Congress is about to make a major decision about privacy protection, civil liberties and national security. The 2008 Foreign Intelligence Surveillance Amendments Act, including its most controversial provision, Section 702, is set to expire on Dec. 31. The two of us — both members of the panel that President Barack Obama appointed in 2013 to review the government’s foreign intelligence programs in the wake of Edward Snowden’s disclosures — agree that FISA Section 702 should be reauthorized but with a significant reform. The government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about U.S. citizens and legal permanent residents.
Section 702 permits the government to conduct targeted surveillance of foreign people located outside the United States. This statute is necessary because a significant share of the world’s communications transits through the United States, even when they begin and end overseas. Congress enacted Section 702 to address an intelligence-collection gap that resulted from the evolution of technology in the years after FISA became law in 1978. By 2008, many foreign intelligence targets outside the United States were using communications systems based in the United States, especially those provided by U.S.-based Internet service providers.
Traditionally, a court order was required for the government to intercept any communications inside the United States. Because of the change in technology, and before FISA was amended in 2008, court orders were therefore required for the government to target foreigners who were outside the United States if their communications flowed into the United States. This was required neither by the Fourth Amendment nor by common sense but was simply the accident of new technology. Section 702 was designed to remedy this situation.
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