Section 702: Two myths, two concerns, and two final thoughts

[Commentary] I often run across the belief, expressed in print or in person, that Section 702 of the FISA Amendments Act allows for bulk collection of information and that it offers no protections whatsoever for non-US persons. Both of these are urban legends; neither of them is factually correct. 702 does not allow collection of bulk data, and 702 does not allow indiscriminate collection of non-US-person communication.

As I testified to Congress, it’s my belief, based on my personal experience and professional judgment, that Congress drew the balance of authority and restrictions in the right place when it enacted FAA 702 in 2008 and when it reauthorized it in 2012. This year provides an important opportunity to FISA Amendments Act to be carefully scrutinized once again. But as Congress continues its work, it’s worth remembering that things that aren’t broke don’t need fixing. Sometimes they just need to be extended as-is.

[April Doss is a partner and chair of the Cybersecurity and Privacy practice group at Saul Ewing. Prior to that, she spent over a decade at the National Security Agency, where she was the Associate General Counsel for Intelligence Law. ]