On its surface, it’s a persuasive case, but these arguments are misleading. What matters isn’t whether Americans were targeted—it’s whether their privacy has been violated. So even if Americans are not technically targeted for surveillance under Section 702, the important part is their communications are incidentally collected just the same. More importantly, it’s completely false that the government can collect Americans’ communications only in cases of national security. In reality, the law is far more expansive: The National Security Agency can collect communications that are just relevant to the foreign affairs of the United States, a huge and dangerous loophole that effectively gives carte blanche to intelligence officials to spy on anyone abroad — including journalists, political and human rights activists, lawyers, scientists, students and business people.
The history of how Section 702 became law makes the breadth of surveillance unsurprising. Congress passed this part of the FISA law in the wake of 2005 revelations that President George W. Bush had been illegally spying on Americans’ phone calls and internet communications with foreigners. Instead of calling the White House to account for its actions, Congress passed Section 702 to authorize a version of Bush’s surveillance program. Supporters argued the law would better protect privacy and impose some level of judicial oversight, but, as we learned from the Snowden documents, which showed the NSA collects everything from phone calls to videos to emails, attachments and more, lawmakers painted with such a broad brush that they failed to achieve those goals. Indeed, a Washington Post sampling of approximately 160,000 communications collected under Section 702 found that nine out of 10 account holders identified in them were not surveillance targets; their communications had been incidentally collected, and about 50 percent were U.S. residents.
The Post’s findings are supported by the judicial record. A FISA Court judge who oversees surveillance under Section 702 found that “substantial quantities” of Americans’ communications are swept up under this authority. How much? We simply don’t know: Recently, Coats announced that he’s either unwilling or unable to provide a rough calculation — even by orders of magnitude — of the number of Americans surveilled under Section 702, despite having been asked for this information by members of Congress for the past six years and having promised to fulfill his predecessor’s commitment to do so during his confirmation hearing.