E. Executive Order 12,333
II. P ROGRAMMATIC C OLLECTION
Almost immediately after passage of the FAA, members of Congress, scholars, and others began criticizing Section 702 be-
140. Id.
141. Id.
142. The order states with regard to indirect participation, “No element of the Intel- ligence Community shall participate in or request any person to undertake activities forbidden by this Order.” Exec. Order No. 12,333, 3 C.F.R. 200, § 2.12 (1982), as amend- ed by Exec. Order No. 13,470, 73 Fed. Reg. 45,325, § 3(ii) (July 30, 2008). This prohibits the intelligence community from actively participating in collection, or requesting other countries to engage in collection, outside the confines of the order; however, it does not appear to prohibit the intelligence community from simply receiving or bene- fiting from other countries’ actions in this regard.
143. By “programmatic collection” I refer to a method of collection involving indiscriminate surveillance. The scanning of e-mail communications for reference to selectors, targets, or key words, is thus programmatic. It is not limited to the communications of particular individuals but, rather, monitors the communica- tions of all individuals passing through particular points.
cause of the potential for the government to use the authorities to
engage in programmatic surveillance.144
In 2009 prominent national security law Professor William Banks explained, “the FAA targets do not have to be suspected of being an agent of a foreign power or, for that matter, they do not have to be suspected of terrorism or any national security offense, so long as the collection of foreign intelligence is a significant pur-
pose of the surveillance.”145 Surveillance could be directed at a
person, organization, e-mail address, or even “an entire ISP or
area code.”146 He noted, “the surveillance permitted under the
FAA does not require that the Government identify a particular
known facility where the intercepted communications occur.”147
These provisions represented a sea change from how FISA had previously worked (albeit introducing, for the first time, statutory restrictions in an area previously governed by Executive Order). U.S. persons’ communications now could be incidentally collected under the statute, on a large scale, without many of the protec-
tions in traditional FISA.148
Banks presciently pointed out the most likely way in which the new authorities would be used:
Although details of the implementation of the pro- gram . . . are not known, a best guess is the Government uses a broad vacuum cleaner-like first stage of collection, focus- ing on transactional data, where wholesale interception oc- curs following the development and implementation of fil- tering criteria. Then the NSA engages in a more particularized collection of content after analyzing mined data . . . [A]ccidental or incidental acquisition of U.S. persons inside the United States [will] surely occur[], especially in
light of the difficulty of ascertaining a target’s location.149
For Professor Banks, part of the problem was that the nature of international information flows meant that it would be impossible
144. See, e.g., Banks, supra note 52.
145. Id. at 5013–14.
146. Id.
147. Id.
148. Id. at 5014.
to tell if an individual is located overseas or within domestic
bounds.150
Banks was not the only one to question the implementation of Section 702. Cases began to appear, raising facial and as applied constitutional challenges. Problems characteristic of relying on Article III courts in the context of surveillance came to the fore. In Clapper v. Amnesty International, plaintiffs alleged that Section 702 violated the targets’ Fourth Amendment rights because it allowed for the acquisition of international communications absent an in-
dividualized court order supported by probable cause.151 The Su-
preme Court dismissed the suit for lack of standing—that is, the absence of any concrete injury. It did not reach the merits of the
Fourth Amendment claim.152
The FAA was set to expire at the end of 2012. By early Febru- ary, James Clapper, the Director of National Intelligence, and At- torney General Eric Holder had informed Congressional leaders that reauthorization of the FAA was “the top legislative priority of
the national Intelligence Community.”153 The Administration
credited the FAA with the production of “significant intelligence that is vital to protect the nation against international terrorism
150. Id. at 5015. In another article, he laid out guidelines for reform: Namely,
that any applications for programmatic surveillance be based on a demonstration that the proposed information collection is material to specific counterterrorist or intelligence investigations, that alternative techniques are not available, and that it is likely that the program will generate the necessary information. Banks, supra note 17, at 1637. Higher protections for personally identifiable information, and its dissemination, and FISC review of the programs for First and Fourth Amendment implications proved equally important. Banks, supra note 17, at 1637.
151. 133 S. Ct. 1138 (2013). 152. Id.
153. Letter from DNI James Clapper and AG Eric Holder to John Boehner, Speaker of the House; Harry Reid, Majority Leader, U.S. Senate; Nancy Pelosi, Democratic Leader, U.S. House of Representatives, Mitch McConnell, Republican Leader, U.S. Senate (Feb. 8, 2012), available at http://www.intelligence.senate.gov/ pdfs112th/dni_ag_letter.pdf [http://perma.cc/24FR-BEJ3]. This statement resur- faced repeatedly over the next six months. See, e.g., Letter from Kathleen Turner, Director of Legislative Affairs ODNI and Ronald Weich, Assistant Attorney Gen- eral Office of Legislative Affairs, DOJ, to Dianne Feinstein, Chair, and Saxby Chambliss, Vice Chair, Senate Select committee on Intelligence, (May 4, 2012),
available at http://www.dni.gov/files/documents/Ltr%20to%20HPSCI%20Chairman
%20Rogers%20and%20Ranking%20Member%20Ruppersberger_Scan.pdf [http:// perma.cc/9PDN-P9MC] (writing that reauthorization of the FAA was “the top legis- lative priority of the Intelligence Community.”).
and other threats.”154 Offering classified briefings and attaching an unclassified annex, Clapper and Holder wrote, “We are always considering whether there are changes that could be made to im- prove the law in a manner consistent with the privacy and civil
liberties interests of Americans.”155 But their “first priority” was
“reauthorization of these authorities in their current form.”156
The NSA’s inability to provide the number of American citi- zens’ communications intercepted under the act became a matter of public debate. In May 2012 Senators Ron Wyden and Mark Udall raised concerns about what they referred to as a “back
door” in the statute.157 In June 2012 SSCI noted numerous sena-
tors’ concern about the IC’s inability to provide an estimate of the number of individuals whose communications had been inter-
cepted.158 Attention was further drawn to the lack of information
about whether the NSA had attempted to search Americans’
communications without a warrant.159 By the end of July 2012,
more than a dozen senators had joined a letter to Director of Na- tional Intelligence James R. Clapper, expressing alarm “that the intelligence community has stated that ‘it is not reasonably possi- ble to identify the number of people located inside the United
154. Id.
155. Id.
156. Id.
157. On May 4 2012, Senators Wyden and Udall wrote a letter to the Inspector General (IG) of the NSA as well as the IG of the Intelligence Community, request- ing an estimate of “how many people inside the United States have had their communications collected or reviewed under the authorities granted by § 702[?]” Letter from Ron Wyden, U.S. Sen. and Mark Udall, U.S. Sen. to IG of the Intelli- gence community (May 4, 2012), available at http://www.wyden.senate.gov/ download/?id=ce360936-dff9-4273-8777-09bf29565086&download=1 [http://perma.cc/ LAJ7-XT3Y] (note that this letter was sent May 4, 2012 but incorrectly dated May 4, 2011). I. Charles McCullough responded, “The NSA IG provided a classified response on June 6, 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional re- sources would likely impede the NSA’s mission.” Letter from I. Charles McCullough, III, Inspector General of the Intelligence Community, to Senators Wyden and Udall, (June 15, 2012), available at http://www.wired.com/images_ blogs/dangerroom/2012/06/IC-IG-Letter.pdf [http://perma.cc/WG7V-7EXT]. 158 S. REP. NO. 112-174 (2012), available at https://www.fas.org/irp/congress/ 2012_rpt/faa-extend.html [http://perma.cc/3PDP-DRDT].
159. Udall Calls on Intelligence Director to Provide Answers before Senate Debate on FISA Amendments Act, MARK UDALL (July 26, 2012), http://www.markudall. senate.gov/?p=press_release&id=2586 [http://perma.cc/SDM2-3K25].
States whose communications may have been reviewed’ under the FAA.’”160
These concerns did not stop the legislation from progressing.
Congress did not hold any hearings on the renewal bill.161 Efforts
to amend the legislation failed.162 On September 12, 2012, with
minimal debate, the House voted to reauthorize the FAA 301-
118.163 The Senate passed the bill at the end of December 2012, 73
to 23.164 President Obama signed the legislation, extending the
FAA until Dec. 31, 2017.165
Six months later, the Snowden documents again forced Section 702 into the public discussion. The information that has since emerged raises statutory and constitutional concerns with regard to three areas: targeting, post-targeting analysis, and the use and dissemination of information.
160. Letter from thirteen Senators to James R. Clapper, Dir. of Nat’l Intelligence, July 26, 2012, available at http://www.wyden.senate.gov/download/letter-to-dni [http://perma.cc/33AY-ZG4F]. But see S. Rep. No. 112-174, at 8–9 (2012), available at https://www.fas.org/irp/congress/2012_rpt/faa-extend.html [http://perma.cc/X9U7- NPSE] (Senator Feinstein writing, “During the Committee’s consideration of this legislation, several Senators expressed a desire to quantify the extent of incidental collection under section 702. I share this desire. However, the Committee has been repeatedly advised by the ODNI that due to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under section 702 authority. Senators Ron Wyden and Mark Udall have requested a review by the Inspector General of the NSA and the Inspector General of the Intelligence Community to determine whether it is feasible to esti- mate this number. The Inspectors General are conducting that review now, thus making an amendment on this subject unnecessary.”)
161. 158 CONG.REC. H5892, (daily ed. Sept. 12, 2012) (statement of Rep. Nadler); 158 CONG.REC. H5895 (daily ed. Sept. 12, 2012) (statement of Rep. Johnson of Georgia) (stating that the Judiciary Committee held no hearings).
162. Sen. Jeff Merkeley of Oregon unsuccessfully proposed an amendment that would have required FISC to disclose “important rulings of law.” Ron Wyden proposed an amendment that would have required the government to estimate the number of US citizens whose communications had been intercepted.
163. 158 CONG.REC. H5900-5901, (daily ed. Sept. 12, 2012). The debate took only 11 pages of the Congressional Record. See id. at H5900-H5910.
164. 158 CONG.REC. S8461, (daily ed. Dec. 28, 2012). See also, U.S. Senate Roll Call Votes 112th Cong., 2nd Sess., Dec. 28, 2012, available at http:// www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=11 2&session=2&vote=00236 [http://perma.cc/QWE9-P336].
165. FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238. 126 Stat. 1631 (2012).