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Is FISA Section 702 Unconstitutional, or Largely Misunderstood?

Is the Foreign Intelligence Surveillance Act actually unconstitutional, or do most people just not understand what it's used for?


On New Year’s Eve, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire.  Section 702 authorizes the NSA to gather data without a warrant.  For some reason, though, lawyers for the executive branch have determined that surveillance under FISA can legally continue until April 26, 2018.  How exactly?  They are saying it’s a technicality.  The FISA Amendments Act says orders issued under 702 can continue for a year. Section 702 was certified on April 26, 2017, which means the government can continue surveilling without a warrant for a year.  Is this even an issue?  Some critics are saying that Section 702 violates constitutional rights.  But they may not have the full story.

In July 2008, Section 702 became part of the FISA Amendments Act.  The law basically allows the Attorney General and the Director of National Intelligence to surveil non-U.S. persons in order to acquire foreign intelligence information.  This next part is key.  The person cannot be located in the United States.  The argument which suggests that this impedes on the rights of U.S citizens isn’t quite accurate.  Not only is it targeting non-U.S. citizens, but they can’t be in the United States either.


Which means, they’re not surveilling U.S citizens or permanent legal residents.  What is the counter argument?  The government doesn’t need a warrant because non-U.S. citizens who are outside of the United States aren’t usually protected by the Fourth Amendment.  Does that make it unconstitutional?  They’re only looking at people outside of the United States, who are non-citizens.  Meaning, if there is a non-citizen inside the United States, they can’t surveil them without a warrant.  In theory.

Some argue that Section 702 is a critical National Security Tool.  Is that a fair statement? While I won’t go into details, there is a case (likely several) where Section 702 allowed the government to uncover and disrupt possible terrorist attacks. Section 702, if applied properly, shouldn’t be causing this much of a stir, should it?  Perhaps people are assuming that Section 702 allows the government to surveil anyone in a willy-nilly fashion.  Don’t get me wrong. I am not defending the government here, but all of this kind of makes sense to me. I understand where the argument comes in that this isn’t constitutional.  And it seems that way on the surface, but if this law is being applied to non-U.S citizens, then they aren’t protected under the constitution in the first place.


Just because I have certain rights and freedoms in my country, doesn’t mean that those stay with me when I go to another country.  So how can you make the argument that the constitution applies to non-U.S. citizens?  Again, this isn’t in defense of the government or any law, but I think this is largely misunderstood.  That being said, my argument would be different if U.S. citizens are being surveilled.  I would definitely change my tune. Or if it was surveilling non-U.S citizens inside the United States, I would be concerned. However, if Section 702 is being used as it is written, then I’m not sure what the problem is.  Laws need to be reviewed.  Section 702 is no different.  Maybe this is as good a time as any to get that process started.

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