Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries
March 31, 2019 | 94 Wash. L. Rev. 401
Abstract: The transformation of U.S. foreign intelligence in recent years has led to increasing privacy concerns. The Foreign Intelligence Surveillance Act of 1978 (FISA) traditionally regulated foreign intelligence surveillance by authorizing warrant-based searches of U.S. and non-U.S. persons. Individualized court orders under traditional FISA were intended to protect U.S. persons and limit the scope of intelligence collection. In a post-9/11 world, however, the intelligence community cited concerns regarding the speed and efficiency of collection under traditional methods. The intelligence and law enforcement communities recognized the “wall” preventing information sharing between the communities as a central failure leading to the 9/11 attacks. In response, the scope and authorizations of foreign intelligence collection were expanded with numerous statutory measures, culminating in the passage of Section 702. Under Section 702, only non-U.S. persons located abroad may be surveillance targets, but no warrant is required for the intelligence collection. Since its passage, the intelligence community and privacy advocates have intensely debated the implications of incidental collection of U.S. person communications, including the use of U.S. person queries. Despite the significant expansion of surveillance authorized in the shift from traditional FISA to Section 702, minimization and targeting procedures regulated by the new statute are designed to protect U.S. persons and balance national security and privacy interests.
This Comment addresses the uncomfortable question of whether the U.S. Constitution permits the minor intrusion of a few to protect national security and argues that Section 702 queries are searches under the Fourth Amendment that require a justification independent from the overall surveillance to be constitutional. Nonetheless, the Fourth Amendment protects against only unreasonable searches or seizures by the government, and U.S. person queries are reasonable searches characterized by critical foreign intelligence interests and robust safeguards that outweigh limited impacts on privacy. While the Fourth Amendment does require probable cause warrants for U.S. person queries conducted for criminal investigative purposes, such queries are rare. Striking the proper balance between privacy and security, particularly in the modern technological era, is a complex and challenging legal question. In this context, considerations must include policy and value-laden choices that weigh the statute’s own regulatory measures against the rights protected by the Fourth Amendment. Such an approach renders U.S. person queries reasonable Fourth Amendment searches, albeit subject to more stringent requirements than courts and the government have previously found.
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