Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the United States’ 18 federal intelligence agencies to spy without a warrant on non-Americans overseas but many in Congress—especially Republicans—say the measure, adopted after the 9/11 attacks, has been abused and needs to be revised.
FISA’s Section 702 must be reauthorized by Congress every five years before it “sunsets,” or expires. Its latest renewal is before the end of 2023.
Among proposals to ensure private data on U.S. citizens is not collected through Section 702 and made available to government agencies, such as the FBI or IRS, is to require a probable cause finding before opening an investigation or to install a warrant requirement into its process.
The Biden administration, federal law enforcement agencies, and the Department of Defense (DOD) oppose those proposed revisions, claiming a warrant process would impair ability to quickly disrupt cyber-attacks and investigate threats to national security. They want Section 702 reauthorized as is by year’s end.
The prospects of that happening appear in doubt if April 27 discussions before two House subcommittees are an indication of how Congress may act.
“The reauthorization of 702 is extremely important to our national security,” Rep. Austin Scott (R-Ga.) said during a hearing before the House Armed Services Committee’s Intelligence & Special Operations Subcommittee.
But, he continued, “I just want to say this—the bureaucrats at the FBI, in some cases, have abused their authority and there are going to have to be some systems put in place to stop that if it is going to be reauthorized and there are going to have to be consequence for the people who abuse that authority.”
‘Critical to Keeping Nation Safe’
Under Secretary of Defense for Intelligence and Security Ronald Moultrie, National Security Agency Director Gen. Paul Nakasone, and Defense Intelligence Agency Director Lt. Gen. Scott Berrier all said Section 702 was “pivotal” in combatting intelligence threats, especially from the Peoples Republic of China, Russia, and “non-state malign actors.”“Section 702 of Forego Surveillance Act … is critical to keeping the nation safe,” said Nakasone, who is also U.S. Cyber Command, commander and chief of the Central Security Service, adding he’s ready to “speak with Congress about its pivotal role” in a classified setting.
Moultrie agreed, noting “59 percent of president’s daily briefings material is Section 702 material reported by our agency.”
Scott told Nakasone that he “appreciates the way your agency has used” Section 702 data but too much private information on American citizens is being swept up by intelligence agencies.
“People are going to have to understand, the president of the United States is going to have to understand, there are going to have to be some guardrails on 702 for it to be reauthorized because of abuses that have occurred, predominately by bureaucrats at the FBI,” he said.
FISA’s Section 702 only permits surveillance and information-gathering on non-U.S. citizens “reasonably believed to be located outside” the country. It also prohibits “reverse targeting” of a non-U.S. citizen outside the country “if the purpose … is to collect information” about an American citizen or anyone in the United States.
According to the Director of National Intelligence (DNI) Office, “Section 702 is not a bulk collection program; it is a substantial and important targeted intelligence collection program. Every Section 702 targeting decision is individualized and documented, approved pursuant to a multi-step process embodied in specific targeting procedures, and reviewed by an independent oversight team.”
If a foreign intelligence target sends an email or places a phone call with a person in the United States, the DNI maintains that Section 702 requires “specific procedures to minimize the acquisition, retention, and sharing of any information concerning United States persons” unless it was determined that the person in the United States “was a key member of an ongoing terrorist plot.” Then, the DNI states, “this information would be appropriately shared to allow the FBI to take further investigative steps.”
Clarity Itself ‘Not Sufficient’ to Remedy Concerns
The DNI notes that Section 702 “is subject to extensive oversight.” It requires that the U.S. Attorney General must approve the targeting, which is reviewed by the Foreign Intelligence Surveillance Court (FISC) for consistency with the FISA statute and the Fourth Amendment.There have been several attempts to insert a warrant process into Section 702, including a 2018 ‘USA Rights Act’ that received more than 200 votes but was not included when Congress reauthorized the law. That discussion is being revived again with Section 702 set to sunset or be reauthorized by year’s end.
The Privacy and Civil Liberties Oversight Board (PCLOB), an independent agency within the executive branch since 2004 to ensure privacy rights and civil liberties are considered in collecting private information, is expected to issue a report with Section 702 recommendations this summer.
FISA’s Section 702 was also discussed on April 27 in a hearing before the House Judiciary Committee’s Crime and Federal Government Surveillance Subcommittee that included members of PCLOB, including chair Sharon Bradford Franklin.
“Having clarity can help prevent the kind of compliance violations we have seen,” she said before noting just doing that would be “not sufficient.”
“I believe that in addition to having specified rules which are approved by the FISA court, Congress should incorporate a requirement that individual queries be submitted to the FISA court for review to ensure full protection,” Bradford Franklin said.
Congressional reps have groused for years that intelligence agencies won’t even offer round estimates of how many people they have surveilled under Section 702, and how many of those were U.S. citizens or residents.
The FBI reported in 2021 that it had conducted 3.4 million searches through Section 702-collected data but would not say how many involved U.S. citizens.
House Judiciary Committee Chair Rep. Jim Jordan (R-Ohio) offered two “simple” solutions to reauthorizing 702 with guardrails that protect individual privacy rights.
Congress can “require probable cause if you’re going to query this database on American citizens” and can restrict FBI access, he said, before adding, “How about if we just get the FBI out of the business altogether?”
