Congress should sunset any extension of the intelligence community’s dubious electronic surveillance authority to intercept, store and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.
Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until Dec. 31, 2017.
Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statute’s effectiveness is doubtful; the government’s compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.
All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond Dec. 31.
Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.
The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the U.S. Court of Appeals decision in Microsoft Corp. v. United States.
The government’s technical capabilities for intercepting, storing and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to ensure against a horse-and-buggy statute governing in an age of interstate highways.
Another sunset for 702 is also prudent because of the government’s professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment of the U.S. Constitution. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of U.S. citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.
The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the pre-emption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the “NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.” NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sake—an illicit government objective.
The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017, FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised “very serious” constitutional questions. These chronic violations also argue against any permanent extension of section 702.
Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage or other crime as a predicate for invading their communications privacy.
The U.S. Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Court’s gives imprimatur. Caution is the order of the day when skating close to the Constitution’s edge.
In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond Dec. 31. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.