The really insane part
The second issue: searching of that database using the personally identifiable information of US citizens – something that goes directly against the wording of the law itself – is the most ridiculous part of the document.
"Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information," the document states – which fits in with the intent of the law.
But then, in the very same sentence, it reads: "...although the FBI may also conduct such queries to identify evidence of a crime."
Note that the database goes from only gathering foreign intelligence to searching for evidence of a crime carried out in the United States by a US citizen in just 14 words.
How on earth it is possible to legally justify such a position? Hold on to your hats... "Querying databases containing Section 702 information does not result in any new acquisition of data; it is instead only an examination or re-examination of previously acquired information."
And then, piling one ludicrous interpretation onto another, the document claims those searches are not "separate searches" and so the Fourth Amendment – which would apply in virtually every conceivable scenario – does not apply.
The document claims this database searching is "similar to a person searching an email inbox for a particular message" rather than a violation of their constitutional rights against illegal searches.
Congressmen and civil rights groups have been justifiably infuriated by this argument and have insisted that the FBI should have to go through the normal legal process of obtaining a warrant before carrying out such a search.
The document argues: "Adding such a requirement would severely hamper the speed and efficiency of operations by creating an unnecessary barrier to national security professionals' ability to identify potential threat information already in the lawful possession of the IC."
We cannot imagine a US judge supporting that legal argument: that illegal searches should be allowed because getting a warrant is too time-consuming.
As for tapping the internet backbone, the NSA/FBI acknowledges that it does so – calling it "upstream" collection – and acknowledges that the "NSA has also acquired information 'about' targets of Section 702 – for example, where the target is neither the sender nor the recipient of the collected communications, but the target's tasked selector, such as an email address, is being passed between two other communicants."
It notes that the Foreign Intelligence Surveillance Court (FISC) has "considered upstream collection and concluded that it is lawful," while noting that this information "has allowed the IC to acquire unique intelligence that informs cybersecurity efforts."
Of course what that justification does not address is how the "tasked selector" was identified in the tapping of the internet backbone when it neither came from the individual they were targeting, nor was delivered to them.
This makes a mockery of the claim that Section 702 is only used for targeted surveillance and instead looks as though the NSA is gathering all possible information and searching within it, which inevitably means the gathering of huge amounts of data on US citizens – the very thing the law is supposed to avoid.
The FISC claim is difficult to discern due to continued secrecy of its functioning and its decisions.
But perhaps the most extraordinary claim in the whole document is that spying on US citizens is for their own protection.
"Queries using US person identifiers in Section 702 collection," it reads, "can assist the IC in identifying situations where a US person may be the subject of an imminent threat, with the goal of protecting the US person from harm."
There is of course one positive to the "factsheet" on Section 702: thanks to information in the public domain and Congressional hearings, the intelligence agencies have been forced to flag their own contradictions in how they chose to interpret the law.
If Congress does its job properly, those contradictions will be removed and future-proofed before the intelligence agencies get their right to spy on US communications returned to them. ®