Reforming 702: Ensure Meaningful Avenues for Judicial Redress

This post is part of a running blog series on Section 702 ahead of its reauthorization deadline in December 2023. In this series, EPIC will dive deeper into Section 702 and the need for significant reform. For the other parts of this series, click here. 

Introduction

As recent reporting has confirmed, law enforcement authorities have misused and abused the Foreign Intelligence Surveillance Act (FISA) process, including Section 702. In response, the government has made changes to its internal compliance mechanisms, which attempt to identify and resolve violations, albeit based on small sampling of intelligence activities. Further, Congress has an opportunity to bolster the secretive FISA Court process, which engages in periodic programmatic review of FISA activities including those conducted under Section 702. However, throughout the history of Section 702, there has been a severe lack of judicial review and accountability, whether in criminal or civil proceedings, despite FISA’s express provision of such remedies. This lack of robust judicial review leaves us all worse off, with no opportunity to challenge the lawfulness of these programs and remedy surveillance harms.

Section 702 in Criminal Prosecutions

While Section 702 is a foreign intelligence surveillance authority, the Federal Bureau of Investigation (FBI) frequently searches information from Section 702 programs—without a warrant—in support of its domestic law enforcement operations, including those that ultimately lead to arrest and prosecution. Indeed, the government has for years marketed Section 702 as uniquely valuable based in part on the arrest and prosecution of terrorism plotters like Najibullah Zazi.

When the government seeks to use Section 702 information against a criminal defendant, it must disclose its intent do to so; however, the government has a long history of failing to provide such notice to criminal defendants. As civil liberties groups have documented for years, there have been only a handful of cases in which a criminal defendant was notified that the government intended to introduce 702-derived evidence. This is despite the fact the scope of Section 702 targeting—over 230,000 targets a year—and of the FBI’s querying of Section 702—up to 3.4 million queries of U.S. person identifiers alone in 2021—remain staggering.

For years, civil liberties groups have sounded the alarm that the government is concealing its reliance on Section 702 by narrowly construing its notice obligations to include only those cases where it seeks to rely directly on Section 702 information. Armed with this artificially narrow interpretation of government notice obligations, law enforcement authorities have reportedly engaged in “parallel construction,” meaning that authorities—tipped off by information obtained pursuant to Section 702—recreate the evidentiary trail in order to conceal the role of Section 702 collection in a particular case. Absent meaningful notification requirements (including a prohibition on parallel construction), law enforcement authorities may effectively keep Section 702-derived evidence out of view of the courts, violating criminal defendants’ rights and precluding accountability for unlawful surveillance.

Civil Accountability for Surveillance Harms

Beyond just stymying criminal suspects attempting to defend themselves, the government has effectively insulated itself from accountability via civil litigation, despite FISA’s civil liability provisions. In particular, the government has exploited two judicial doctrines—standing and the state secrets privilege—in order to build potentially insurmountable obstacles to plaintiffs seeking redress, not just for harms arising out of intelligence surveillance, but for a range of other national security programs.

• What Is Standing?

“Standing” is a judicial doctrine that determines who may bring a case in court, which serves in part to ensure that courts do not overstep their bounds. To have standing, a plaintiff must show they suffered an injury in fact, i.e., one that is sufficiently “concrete and particularized” and “actual and or imminent,” not merely hypothetical.[1]

Standing has proven to be nearly insurmountable for plaintiffs challenging electronic surveillance programs because these programs operate covertly. In the aftermath of Congress passing Section 702—thus enshrining the government’s warrantless electronic surveillance into law—a group of civil liberties groups brought a lawsuit challenging Section 702 surveillance. In Clapper v. Amnesty International, the Supreme Court ruled that the plaintiffs had failed to establish their standing because their threatened injury was not “certainly impending,” despite the plaintiffs’ claim that they regularly communicated with likely targets of surveillance conducted under Section 702.[2]

After Clapper, plaintiffs seeking to challenge electronic surveillance have faced a potentially insurmountable obstacle to establishing standing, unless they have somehow are alerted that they were indeed targeted with FISA surveillance.

• What Is the State Secrets Privilege?

The state secrets privilege is a judicial doctrine that allows the government to prevent the disclosure of certain evidence—or even causes the dismissal of a case entirely—because the government claims that disclosing such evidence would harm national security.

Since 9/11, the government has relied on the state secrets privilege to seek dismissal in a wide range of cases, including those arising out of the CIA’s torture program, and the government’s warrantless electronic surveillance, such as that conducted under Section 702. The state secrets privilege has stymied electronic surveillance litigation, most recently in two cases challenging NSA surveillance.

In 2009, in response to concerns that the state secrets privilege has been abused—as well as the looming specter of congressional regulation of the privilege[3]—the Obama administration issued revised procedures governing the process for invoking the state secrets privilege. In September 2022, the Biden administration issued updated procedures, adding further justification requirements as well as mandating that the government periodically assess the continued necessity of the privilege in a given case. However, these procedures remain subject to the whims of a given administration and do not regulate the types of cases in which the government may invoke the privilege. Further, despite at least some prior reporting to Congress on the use of the privilege, there remains no public transparency around how often the government invokes the privilege, either to block the disclosure of evidence or to dismiss a case entirely.

Together, these doctrines have essentially stymied redress, insulating these programs from judicial review and accountability. Even where the occasional plaintiff establishes standing—a truly herculean feat—the government has successfully argued for dismissal under the state secrets privilege, not because the plaintiff—Wikimedia—sought to disclose classified information, but rather because the government argued that any valid defense it had would require it to disclose classified information.[4]

Conclusion

Recent reports and government disclosures have shown that the FISA process—especially Section 702—is ripe for abuse and misuse. Though the government claims that it has recently revised its internal oversight mechanisms to prevent further abuse, this comes after fifteen years of failed executive branch efforts to stem statutory and constitutional violations. Ensuring meaningful avenues for redress is an essential part of the rule of law, with or without effective internal oversight mechanisms.

The Supreme Court’s recent state secrets decisions—and its denial of certiorari in Wikimedia­’s lawsuit—make it clear that the future of surveillance accountability rests with Congress. Congress has an important opportunity to ensure that Section 702 is not reauthorized without ensuring avenues to meaningful redress. In particular, Congress should:

• Codify stronger notice requirements and expressly prohibit parallel construction; and
• Ensure that secrecy cannot insulate the government from judicial review, including by creating a more realistic injury-in-fact standard for challenges to electronic surveillance and reforming the state secrets privilege.

Without meaningful redress for surveillance harms, Section 702 operates as a raw exercise of government power. Absent significant reform allowing for judicial review, Congress should allow Section 702 to sunset.

---

[1] In addition to establishing their injury-in-fact, a plaintiff must show that their injury is “fairly traceable” to the defendant’s conduct at issue and can be redressed—at least to some extent—by a favorable court ruling.

[2] Clapper v. Amnesty Int’l, 568 U.S. 398, 416–17 (2013).

[3] See State Secrets Protection Act, S. 2533, 110th Cong. § 4055 (2008).

[4] See Wikimedia Found. v. Nat’l Sec. Agency, 14 F.4^th 276, 302–04 (4th Cir. Sept. 15, 2021), cert. denied [#] (2023).