Why can the U.S. government collect my emails?

Under authority ostensibly granted by something called Section 702, the U.S. government routinely collects and searches the online communications of innocent Americans without a warrant through what are commonly called “upstream” and “PRISM” (now called “downstream”) surveillance.

Section 702 is a surveillance authority passed as part of the FISA Amendments Act in 2008. That law amended the Foreign Intelligence Surveillance Act of 1978.

Section 702 is supposed to do exactly what its name promises: collection of foreign intelligence from non-Americans located outside the United States. As the law is written, the intelligence community cannot use Section 702 programs to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.

Currently, Congress has to renew Section 702 every few years. It was last renewed in 2018 and is set to expire at the end of 2023.

The bill that was most recently passed, S. 139, endorses nearly all warrantless searches of databases containing Americans’ communications collected under Section 702. It allows for the restarting of “about” collection, an invasive type of surveillance that the NSA ended in 2017 after being criticized by the Foreign Intelligence Surveillance Court for privacy violations. And it includes a six-year sunset, delaying Congress’ best opportunity to debate the limits NSA surveillance.

The Congressional failure in 2018 redoubles our commitment to seek justice through the courts and through the development and spread of technology that protects our privacy and security. Read more about our efforts here.