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.Ĭivil Accountability for Surveillance Harmsīeyond 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. 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. ![]() person identifiers alone in 2021-remain staggering.įor 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. ![]() 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. 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. 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. 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. 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. 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. 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. 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. 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. For the other parts of this series, click here.Īs recent reporting has confirmed, law enforcement authorities have misused and abused the Foreign Intelligence Surveillance Act (FISA) process, including Section 702. ![]() In this series, EPIC will dive deeper into Section 702 and the need for significant reform. This post is part of a running blog series on Section 702 ahead of its reauthorization deadline in December 2023.
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