FISA, Section 702, and How it Could Affect Oklahoma

The recent vote by the House of Representatives approving an extension of a critical provision of the Foreign Intelligence Surveillance Act of 1978, commonly known as FISA, was a significant event. The vote was a victory for Republican House Speaker Mike Johnson, marking his fourth attempt to secure approval. The issue has sparked a lively debate in the Senate, which is yet to cast its vote.

FISA, and particularly section 702, has been a subject of intense debate. Advocates argue that it is a crucial tool in the fight against terrorism. However, opponents view it as a potential threat to privacy rights, as it allows U.S. intelligence and law enforcement agencies to gather and use electronic data collected about American citizens. 

You're not alone if you need clarification about the debate over FISA and Section 702. Here is an explanation of the FISA law, where you'll learn about warrantless searches and secret courts that issue classified decisions that only people with security clearances can see. You'll also learn how the Act could potentially affect people in Oklahoma. After all, Oklahomans who are criminally accused can often find themselves connected to suspects overseas, depending on the specific allegations.

What is FISA and Section 702?

The Foreign Intelligence Surveillance Act (FISA) of 1978 allows U.S. intelligence agencies to intercept the electronic communications of American citizens while targeting foreign nationals. FISA established rules for collecting electronic data and created a court, the U.S. Foreign Intelligence Surveillance Court, or FISC.

As initially enacted, FISA allowed U.S. intelligence agencies to conduct surveillance and intelligence-gathering operations of foreign nationals on foreign soil without obtaining a warrant or other court approval. It did not authorize targeting Americans in the U.S. for surveillance operations without a warrant or other form of approval from a court.

Requests for warrants and other permissions to conduct surveillance or gather intelligence on American soil must be approved by the FISC. Applications must include evidence the target of the surveillance is working on behalf of a foreign entity. FISC proceedings are conducted in secret, and decisions to approve or not approve warrants are classified.

Following the terrorist attacks of September 11, 2001, there was a push to expand domestic surveillance and intelligence-gathering operations of U.S. intelligence and law enforcement agencies. As such, Congress amended FISA to include Section 702 in 2008.

Section 702 expanded the right of intelligence agencies to conduct warrantless acquisitions of electronic communications of any foreign national outside of the U.S. The expansion resulted in the government acquiring electronic communications, including telephone calls, text messages, and emails, of American citizens, even though Americans were not directly targeted.

Concerns in General

Section 702 of FISA does not authorize intelligence or law enforcement agencies to target Americans or their electronic communications unless the government first obtains court approval in the form of a search warrant. Where and when the law falls short is in how it collects data.

FISA allows the government, through the National Security Agency, to compel Google, telecommunications companies, and others to surrender records of telephone calls, emails, internet communications, and text messages sent or received by a foreign national. The data turned over to the government may include communications to or from U.S. citizens.

The concerns over how federal law enforcement agencies misuse intelligence gathered through FISA were given validity when the federal government released a FISC decision, finding the FBI conducted improper searches of foreign intelligence to investigate Americans. The misuse of the data included investigations into the protests that followed the killing of George Floyd in 2020 and the riots at the U.S. Capitol in 2021.

The FISC decision determined that the FBI violated FISA Section 702 rules and procedures in the cited instances and concluded that it violated the rules 278,000 times overall. According to the FBI, new procedures within the agency have been implemented to avoid future FISA violations.

How Can Warrantless Searches Impact Drug Cases in Oklahoma?

Oklahoma news outlets have recently focused on what they allege is an influx of Chinese criminal syndicates infiltrating Oklahoma's medical marijuana industry. Those individuals may conspire with citizens in our state, which can lead to the transfer of digital data from criminal actors in Oklahoma to cohorts in other countries. 

As such, FISA violations aren't the only potential violations to worry about. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures and generally requires law enforcement officers to obtain a warrant before conducting a search. However, there are exceptions to this requirement, including situations where exigent circumstances exist or when evidence is in plain view. 

In Oklahoma, there are certain circumstances where warrantless searches are allowed, such as when there is probable cause to believe that evidence of a crime is present and that waiting for a warrant would result in the destruction of that evidence. As the FISC decision has made clear, there have been numerous violations of these requirements regarding U.S. citizens as it relates to the implementation of FISA. Consequently, there is a risk that those violations will continue.

The ultimate issue centers around the balance between public safety and individual rights. Proponents argue that these searches are essential for law enforcement to effectively combat crime and protect the community or, in a greater sense, the country. They point to cases where warrantless searches have led to the apprehension of dangerous criminals and the prevention of serious crimes committed by individuals in other countries who conspire with people in the States. After all, there are innumerable situations in which foreign nationals work with American citizens in the act of distributing illegal drugs. The communication necessary to establish the conspiracy and carry out the overt acts is usually handled via electronic data. 

If the operation is large enough, there is a fair chance that the federal government will investigate and attempt to prosecute the perpetrators. Consequently, American citizens' information and data may continue to get caught up in the dragnet. In many situations, the crimes aren't a large-scale importation with one point of contact in the United States. More often, people with an addiction in America utilize websites in other countries to illegally order and ship the drugs they crave. Under FISA, the government can intercept that person's digital data to far greater degrees than necessary to simply investigate and prosecute the criminal activity. 

While you may think that the ends justify the means, we have constitutional protections for a reason. When we start to make exceptions for certain situations, that can easily lead to a slippery slope that degrades those protections for the rest of us. The illegal drug trade causes harm to many, but eroding our constitutional rights and protections will have an even more detrimental impact.

What lies ahead in the Senate?

Section 702 expires in April unless the Senate votes to approve the two-year extension approved by the House. It took four votes before the House approved the measure. Whether it had more to do with the politics of a challenge to the speaker's power than privacy concerns about FISA and Section 702 remains. 

An odd thing about FISA Section 702 is that even if the Senate does not approve the bill sent to it by the House, Section 702 will not completely expire. FISA does not allow current Section 702 surveillance activities authorized under a FISC order to expire until the orders end. 

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