Foreign Intelligence Surveillance Act Analysis

This paper presents an analysis of the Foreign Intelligence Surveillance Act (FISA), and it focuses on section 702 with regard to pros and cons. It is significant to note that the Foreign Intelligence Surveillance Act is a legislation that congress enacted in the year 1978 (United States Congress Senate select Committee on Intelligence, 2011). It served as response by congress following the various previous abuses that had been inflicted on the privacy rights of the United States citizens by certain components or sections of the government of the United States. Part of efforts by the government to prevent any purported intimidations that could affect national security led to the occurrences of those abuses. It is worth noting that the threats that influenced the enactment of this legislation compare to the current issues that the US government has been handling in order to improve its national security to significant or desirable levels (United States Congress Senate select Committee on Intelligence, 2011). Those threats are basically of both domestic and foreign concern, and they bear the appearance of terrorism. Despite the fact that Foreign Intelligence Surveillance Act, as a tool, does not have the legal mandate to combat terrorism at the domestic level, the application of its physical search authority and electronic surveillance is an efficient approach for checking the activities, which foreign powers and their agents undertake while conducting their operations within the boundaries of the United States.

In regard to Section 702, which falls under Title VII of the Foreign Intelligence Surveillance Act, the legislation focuses on the approaches that can effectively target certain non-US persons living and conducting their activities outside the U.S. In reference to this section “Procedures for Targeting Persons Outside the United States Other Than United States Persons” (Privacy and Civil Liberties Oversight Board, 2015), the Director of National Intelligence and the Attorney General have the legal mandate to jointly authorize targeting in order to obtain foreign intelligence information about people who are not located inside the United States. In a situation where the government wants to obtain information regarding a certain known individual within the U.S., the authority fails to have legal mandate to target any U.S. individual located in any part of the world. Section 702 of the Foreign Intelligence Surveillance Act requires the existence of a documented and valid foreign intelligence reason for effective utilization of the authority. An example of such a documented reason is counterrorism. In this regard, the legislation demands targeting decisions to have been documented in advance. This authority, also, prohibits distribution of any kind of information that concerns the persons of the United States except when it is essential for assessing and increasing the comprehension of foreign intelligence (Privacy and Civil Liberties Oversight Board, 2015). For such kind of information to be disseminated, it should have the measure of evidence that indicates of a crime such as a seriously bodily harm or death threat.

This section, also, gives a clear outline with respect to targeting procedures. There are a number of requirements that require adoption; for instance, the authority requires the Director of National Intelligence and the Attorney General to jointly adopt targeting procedures, which have a reasonable measure of effectiveness (Privacy and Civil Liberties Oversight Board, 2015). In this case, the procedures should ensure that no communication is intentionally acquired especially where and when sufficient knowledge exists to indicate that both the sender and the recipients are located within the United States. Besides, procedures should be effective enough to ensure that, as authorized under subsection (a), acquisition of communication only focuses on targeting the non-U.S. persons that operate their activities outside the United States. In this regard, the authority legalizes prompt destruction of communication that the law enforcers may have inadvertently acquired especially if it lacks any relevance regarding the authorized purpose. The manner in which the authority requires the collection and utilization of data is significant. Section 702 incorporates the assistance from providers of electronic communication service. However, Foreign Intelligence Surveillance Act requires that assistance should not be obtained from the servers owned by the U.S. providers of electronic communication service (Privacy and Civil Liberties Oversight Board, 2015). In fact, both the Director of National Intelligence and the Attorney General have the joint mandate to provide directives that facilitate approval by the FISA Act court of the information provided by the communication service provider.

In regard to oversight, minimization and compliance under section 702, judicial orders are not significant for authorizing collection of information against each target. The mandate that the FISA court has is to approve annual certifications as jointly submitted by both the Director of National Security and the Attorney General. These certifications are essential for identifying    foreign intelligence categories that can be collected in accordance to the court-approved procedures for targeting as well as minimization (Privacy and Civil Liberties Oversight Board, 2015). It should be clear that Section 702 authorizes activities that are supposed to be controlled by Congress, the Executive Branch, and the Foreign Intelligence Surveillance Court. They entail all-encompassing, court-approved procedures, which emphasize and ensure targeting of the non-U.S. individuals in various parts of the world other than the United States. These procedures, also, require being effective enough to minimalize the acquirement, maintenance, and distribution of information that may have been acquired incidentally regarding the persons of the United States.

Considering the pros of the Foreign Intelligence Surveillance Act, it is significant to note that Congress has been able to strike a comforting balance between personal privacy rights and interests of national security. The legislation, also, prevents the executive branch from conducting unlawful surveillance. The legislation plays an essential role in the communities of law enforcement and intelligence to provide a platform where agents of the federal government can successfully fight any potential threats to the United States national security even when there is constant evolution of technologies, which could be utilized disadvantageously against the government. In regard to the cons of the Foreign Intelligence Surveillance Act, it is significant to note that the separation between law enforcement and intelligence has been essential for introducing opportunities that promote cooperation within the FBI (United States Congress Senate select Committee on Intelligence, 2011). However, some of the law enforcement agencies and FBI have been accused of misusing FISA to secretly conduct insignificant surveillance against the citizens of the United States who may have been suspected of crimes that do not relate to foreign espionage or terrorism.

In conclusion, this paper presented an analysis of the Foreign Intelligence Surveillance Act (FISA), and it focused on section 702 with regard to pros and cons. Foreign Intelligence Surveillance Act served as response by congress following the various previous abuses that had been inflicted on the privacy rights of the United States citizens by certain components or sections of the government of the United States. In regard to Section 702, which falls under Title VII of the Foreign Intelligence Surveillance Act, the legislation focuses on the approaches that can effectively target certain non-US persons living and conducting their activities outside the U.S.

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