Section 702 Data Searching – Why Is There a Privacy Concern?    

A fight over your data has been raging in Congress, and you probably don’t even know. Section 702 is a controversial provision that seemingly has allowed for the search of personal information without warrants or protection under the Fourth Amendment.

Section 702 Data Searching

Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) grants the government the authority to review and intercept electronic communications of targets unprotected by the Fourth Amendment. This generally means overseas targets, but it has increasingly been alleged to have been used for investigation of American targets.

Raw Section 702 data refers to information and data that naturally flows downstream and through technology giants and Internet companies like Google. This information, which is unredacted, contains all sorts of information on Americans and generally requires extensive permissions to review—unless you’re the Federal Bureau of Investigation (“FBI”).

Section 702 of FISA grants the FBI the ability to search such data when it is in connection to foreign threats. Regular audits by the Department of Justice, however, appear to indicate that the FBI regularly searches raw Section 702 data without all the proper authorizations. While these audit reports labeled FBI searches as overly broad and not reasonably likely to yield connections to foreign intelligence, they concluded that FBI agents likely misunderstood search parameters as opposed to searching maliciously.

Privacy Concerns Over Section 702 Data Review

On the other side of the debate, however, some privacy activists allege that misuse of Section 702 data by the FBI has been routine, growing, and, at its worst, can lead to surveillance based on race, faith, or political leanings. Some opponents allege that it is standard FBI practice to search raw Section 702 data during investigations and prior to the start as routine background surveillance. And while law requires the FBI to secure a court order in criminal matters, it has been revealed that the FBI has failed to do so in the past. Third-party watchdogs suggest that declassified reports appear to show that the FBI conducts thousands of illegal searches of such data annually.

Section 702 was enacted as part of the 2008 amendments to FISA and is currently set for use until December 31, 2023. As such, Congress is slated to vote at the end of this year to renew it. Partisan debate rages fiercely around the topic, and it behooves privacy counsel and civil rights attorneys to monitor the debate.

Key Takeaways on Section 702 Data Searching

Section 702 of FISA allows the FBI to search through certain, raw, private data under certain circumstances, and some privacy advocates are concerned because:

• Section 702 data refers to unredacted information that flows downstream from Internet giants like Google;

• It is though that such data may be routinely searched by the FBI without warrants; and

• Section 702 of FISA is up for vote/reauthorization by Congress at the end of 2023.

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