March 8, 2019
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Privacy advocates are asking the United States Supreme Court to review the section of the Foreign Intelligence Surveillance Act that allows the NSA to collect massive amounts of electronic communications, including some belonging to Americans.
In a petition filed this week, the EFF urged the country’s highest court to look at Section 702 of FISA, which allows the NSA to work in cooperation with telecom companies to collect specific kinds of communications, including phone calls and emails. The orders used under this section are approved by the FISA Court, which operates in secret, and are meant to be used to collect communications of foreigners. However, the communications of some Americans are caught up in these collections, and the EFF is asking the Supreme Court to review a ruling in a terrorism case that relied on Section 702 surveillance of a U.S. citizen.
The case involves a man who was convicted of planning to bomb a Christmas event in Oregon in 2012, and the prosecution used some evidence in the case that was collected under Section 702 orders. The defendant, Mohammed Mohamud, appealed the conviction based on the use of that evidence, which his attorneys argued was unconstitutional. The appeals denied by the Court of Appeals for the Ninth Circuit.
“We urge the Supreme Court to review this case and Section 702.”
“Relying on Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, the Government annually intercepts billions of international communications sent by hundreds of thousands of individuals, including Americans. It conducts this surveillance inside the United States with advisory approval of Article III judges, all without a warrant or anything resembling one,” the EFF said its petition.
“This warrantless surveillance of Americans violates the Fourth Amendment, and the advisory role imposed on the Judiciary by Section 702 violates Article III. The Ninth Circuit’s decision in this case disregarded these significant constitutional defects. Instead, the court invented a dangerous—and doctrinally unprecedented—exception to the warrant requirement. And it gave short shrift to the novel role Section 702 imposes on the Judiciary.”
Section 702 has been at the center of controversy for several years, since Edward Snowden’s leaks disclosed its use by the NSA. The law is due to expire in December unless it’s renewed by Congress, and some lawmakers have been pressuring the intelligence community to disclose how many Americans have been affected by incidental collection under Section 702. Sen. Ron Wyden (D-Ore.) has asked Director of National Intelligence Dan Coats for an estimate of affected Americans, but Coats has said it’s too difficult.
“Whatever challenges there may be to arriving at an estimate of U.S. persons whose communications have been collected under Section 702, those challenges may not apply equally to persons located in the United States,” Wyden wrote in a letter to Coats last week. “I believe that the impact of Section 702 on persons inside the United States would constitute a ‘relevant metric,’ and that your conclusion that an estimate is infeasible can and should be revisited on that basis.”
EFF officials said Section 702 bears a close review because of its effect on Americans, which is unquantified at this point.
“We urge the Supreme Court to review this case and Section 702, which subjects Americans to warrantless surveillance on an unknown scale,” said EFF Staff Attorney Andrew Crocker. “We have long advocated for reining in NSA mass surveillance, and the ‘incidental’ collection of Americans’ private communications under Section 702 should be held unconstitutional once and for all.”