The U.S. Intelligence Community relies on Section 702 of the Foreign Intelligence Surveillance Act in the constant hunt for information about foreign adversaries determined to harm the nation or our allies. The National Security Agency (NSA), for example, uses this law to target terrorists and thwart their plans. In a time of increasing cyber threats, Section 702 also aids the Intelligence Community’s cybersecurity efforts.
Under Section 702, the government cannot target a U.S. person anywhere in the world, or any person located in the United States.
Under Section 702, NSA can target foreigners reasonably believed to be located outside the United States only if it has a basis to believe it will acquire certain types of foreign intelligence information that have been authorized for collection.
The illustration below relates to how NSA uses Section 702 and highlights the many privacy protections for a U.S. person under this critical foreign intelligence law.
Q: Can I, as an American, be the target of Section 702 surveillance?
A: No. As an American citizen, you cannot be the target of surveillance under Section 702. Even if you were not an American, you could not be targeted under Section 702 if you were located in the United States.
Q: I will soon travel to Europe for several days. Can I be targeted for surveillance under Section 702?
A: No. American citizens cannot be targeted under Section 702 even when they leave the country, nor can lawful permanent residents (i.e., “green card holders”).
Q: My friend occasionally travels abroad to areas where hostilities often attract global news coverage. I recently talked to him on the phone shortly before one of his trips. Couldn’t that call have been picked up under Section 702, even though I’m not a target?
A: No. As long as your friend is located in the United States, he could not be targeted for surveillance under Section 702. And if your friend is an American, he could not be targeted under Section 702 while overseas.
Q: Could the government target my colleague, who is a citizen of an Asian country, as a pretext to collect my communications under Section 702?
A: No. That would be considered “reverse targeting” and is prohibited.
Q: My neighbor Mary is a U.S. citizen who was born in South America and has non-U.S. citizen family members there. Mary talks to those relatives each week. Couldn’t those phone calls be collected under Section 702 because the U.S. government can target Mary’s foreign relatives in South America?
A: It’s extraordinarily unlikely. First, out of billions of foreigners located overseas, there were only approximately 106,000 foreign 702 targets in 2016. Second, NSA can target Mary’s foreign relatives under Section 702 only if it has a basis to believe it will acquire certain types of foreign intelligence information that have been authorized for collection.
Foreign intelligence information is defined in the law and includes things like international terrorism and weapons proliferation. This means the vast majority of foreigners will never be subject to targeting under Section 702.
Q: One of Mary’s foreign relatives in South America is a member of an international terrorist group. Could Mary’s conversations with that relative be collected under Section 702?
A: Yes, it’s possible, if the U.S. government is aware of the relative’s membership in a terrorist group and the relative is one of the 106,000 targets under Section 702. However, even if this scenario occurred, there would still be protections in place for Mary, a U.S. citizen, if her conversations with that target were incidentally intercepted. For example:
U.S. intelligence agencies’ court-approved minimization procedures are specifically designed to protect the privacy of U.S. persons by, among other things, limiting the circumstances in which NSA can include the identity of a U.S. person in an intelligence report. Moreover, even where those procedures allow the NSA to include the identity of a U.S. person in an intelligence report, NSA frequently substitutes the U.S. person identity with a generic phrase or term, such as “U.S. person 1” or “a named U.S. person.” NSA calls this “masking” the identity of the U.S. person.
There are also what’s known as “age-off requirements”: After a certain period of time, the IC must delete any unminimized Section 702 information, regardless of the nationality of the communicants.
Q: When can NSA “unmask” the identity of a U.S. person?
A: Generally, any authorized recipient of an intelligence report may request an unmasking of the identity of a U.S. person, but only if the recipient has a need for the identity for the performance of official duties, the identity is necessary to understand foreign intelligence or assess its importance, and the request is otherwise consistent with the court-approved minimization procedures.
At NSA, only a small number of individuals possess the authority to approve unmasking requests. The circumstances under which each of these individuals may approve an unmasking request vary based on the U.S. person identity in question and the facts surrounding the request. NSA has developed technology to allow it to document each approved release of U.S. person information, ensuring that the Agency maintains appropriate records and provides accountability to both internal and external oversight bodies.
Q: Can NSA use my information to query lawfully collected 702 data?
A: NSA can query already lawfully collected Section 702 information using a U.S. person’s name or identifier (such as an e-mail account or phone number) only if the query is reasonably designed to identify foreign intelligence information.
However, a U.S. person is still afforded protection. The justification for the query must be documented. The process for conducting a query is also subject to internal controls. Such queries are reviewed by the Department of Justice and the Office of the Director of National Intelligence to ensure they meet the relevant legal requirements. Additionally, if the query was subsequently identified as being improper, it would be reported to the Foreign Intelligence Surveillance Court and to Congress.
Q: Terrorists aim to hurt Americans and our allies, so why doesn’t the Intelligence Community share more Section 702 information about how the IC goes after them?
A: The Intelligence Community has dramatically enhanced transparency, especially regarding its implementation of Section 702. Thousands of pages of key documents have been officially released, and are available on IC on the Record. The public has more information than ever before on how the IC uses this critical foreign surveillance authority. That said, the IC must continue to protect classified information. This includes specifics on whether or not it has collected information about any particular individual.
If terrorists could find out that NSA had intercepted their communications, terrorists would likely change their communications methods to avoid further detection.
Q: Is the U.S. government the only one in the world with intercept programs like 702?
A: No. Many other countries have intelligence surveillance intercept programs, nearly all of which have far fewer privacy protections. Section 702 and its supporting policies and practices stand out in terms of strength of oversight, privacy protections, and public transparency.
Date Posted: November 17, 2017 | Last Modified: November 17, 2017