The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 and authorized procedures for the collection of foreign intelligence through physical and electronic surveillance of foreign powers and agents of foreign powers. The Act set up a specific court, the Foreign Intelligence Surveillance Court (FISC), to review and approve requests for surveillance warrants by various government agencies. FISA required individual warrants from the FISC for every surveillance target with a 72-hour grace period to acquire that warrant in exigent circumstances. The goal of FISA was to provide judicial and congressional oversight of secret government surveillance for intelligence gathering.
After the attacks on the World Trace Center in 2001, President Bush authorized surveillance without FISA warrants of the communications of non-US citizens considered a threat to national security and believed to be outside the United States. During this period of collection, some communication of US citizens was collected incidentally because they were either on the receiving or sending end of these communications. This collection program was brought to public attention in 2005 and there was substantial discussion as to whether or not this type of collection, because it involved information geographically inside the US, required warrants. As a result of this controversy, the Patriot Amendment Act was enacted in 2007 by Congress, and then renewed through provisions in 2008 in the FAA.
The FAA introduced Chapter VII, which included Section 702 authorizing surveillance of non-US people outside of the country who were of national security interest. Section 702 states that individual warrants are not required for surveillance of “non-U.S. persons outside of the United States” and instead annual certifications identifying categories of foreign intelligence targets can be issued by the Attorney General and the Director of National Intelligence. These certifications must also be approved by the FISC. A “comprehensive regime of oversight by all three branches of Government” was included as well to help protect the privacy and civil liberties of US persons. Three main provisions as well as strict reporting procedures are followed under Section 702 to ensure valuable intelligence information is gathered with a conscious effort to protect US citizen’s privacy interests.
The first of these provisions is referred to as targeting procedures, which require that the surveillance must be of non-US persons believed at the time to be located outside of the United States. This means that the government cannot intentionally target a US citizen or anyone known to be in the United States at the time and they cannot intentionally target a non-US person in an effort to collect their communication with a US person. If a target for surveillance falls within any of the aforementioned categories, then it is required...