OTI, EFF, and CDT Urged the Supreme Court to Take Case on the Constitutionality of Section 702 Surveillance

This week, New America’s Open Technology Institute (OTI), the Electronic Frontier Foundation, and the Center for Democracy & Technology submitted a legal brief to the Supreme Court urging it to take up the case Mohamud v. United States, which challenges the constitutionality of surveillance under Section 702 of the Foreign Intelligence Surveillance Act.

Section 702 is a law that passed in 2008 to codify the Bush administration’s warrantless wiretapping program that collected the contents of communications of Americans who communicated with foreign targets located abroad. Today, the law authorizes programmatic surveillance targeting foreigners abroad, where the NSA obtains certifications from the Foreign Intelligence Surveillance Court (FISC) to engage in upstream and downstream collection.

Upstream collection is where the NSA compels internet providers to assist it in obtaining communications directly from the underseas fiber optic cables that transit the vast majority of global internet traffic, dubbed the “internet backbone,” and scanning that traffic for communications to and from their targets -- and until recently, communications “about” or referencing those targets, as well. Downstream collection is where the NSA requires internet communications service providers like Google, Facebook, and Twitter to search their users’ communications and provide the government with any of those communications that are to or from the government’s targets.

The NSA can engage in this surveillance for broad purposes that extend well beyond national security. Also, because of both the scope and nature of surveillance, massive amounts of Americans’ communications are “incidentally” swept up under this authority when they communicate with targets. Intelligence Community analysts determine who will be targeted for surveillance, and those individual targeting decisions are not subject to judicial oversight. The only role for the FISC is to provide an annual certification for the specific categories of information that the government may collect under Section 702, and to approve and oversee the application of the Intelligence Community’s targeting and minimization procedures.

To select an individual target, the Intelligence Community does not need to determine that there is probable cause, and no court ever weighs in on the appropriateness of individual targeting decisions, as is required for surveillance under the Wiretap Act and Title I of FISA. Yet, once communications are in the government’s databases, the NSA, CIA and FBI can warrantlessly search through this information looking for Americans’ communications, and if it finds evidence of a crime, the FBI and Justice Department can use that information in investigations and in some prosecutions.

The brief, called an amicus brief (also known as a friend of the court brief), argues that Section 702 is unconstitutional, and that as such, the Supreme Court should take up Mohamud, so that a decision can be rended as to its legality. Our brief argues that the large-scale incidental collection of Americans’ communications under Section 702 violates the Fourth Amendment’s warrant and reasonableness requirements.

Our brief also argues that because Section 702 entails programmatic, instead of individualized, surveillance authorizations, it violates the requirements of Article III, which permits federal courts to adjudicate only “Cases” and “Controversies.” Section 702 fails to meet this requirement because the FISC does not use an adversarial process, as traditional courts use, to execute its duties. Instead, it operates in secret, and its proceedings are almost exclusively ex parte, which means that only the government makes its argument for why the surveillance authority it is requesting should be approved; there is no adverse party to argue for the rights of the surveilled.

Additionally, the brief argues that the FISC’s review of programmatic surveillance under Section 702 is “is divorced entirely from the specifics of any particular surveillance targets or cases.” As such, the FISC’s preliminary review of Section 702 surveillance programs is akin to a court issuing an advisory opinion, which is impermissible, more than it is similar to the role of a traditional Article III court issuing an individualized warrant for surveillance.

For nine years, the NSA has engaged in the warrantless, large-scale incidental collection of Americans’ communications under Section 702. The massive secrecy that shrouds Section 702 has prevented the courts from considering the constitutionality of this surveillance. Mohamud v. United States finally presents the Supreme Court with that opportunity; it should take the case.