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FISA Section 702 Saga: With Section 702 On Brink Of Expiring, Where Do Things Go From Here? – Analysis

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By George W. Croner*

(FPRI) — It is late October and a truck careens through lower Manhattan striking innocent pedestrians killing 8 and injuring 11 others. In mid-December, a bomb explodes in the Port Authority bus terminal near Times Square. The bomb is carried by an admirer of ISIS who allegedly detonated the device in retaliation for U.S. airstrikes on ISIS targets in Syria. Just days later, a terrorist plot to bomb Pier 39 in San Francisco, and then shoot those fleeing the blast, is thwarted by law enforcement officials. Clearly, terrorism in the United States homeland remains a clear and present danger.

Now, picture a scenario where those officials most directly responsible for acquiring the nation’s foreign intelligence tell the people’s elected representatives that a particular program due to expire at year’s end is among the nation’s most important intelligence collection tools, especially in the area of counterterrorism.[1] Imagine, then, that those elected representatives disband for their various holiday pursuits without acting to provide an authoritative renewal for continuing this critical intelligence program.

Welcome to the United States Congress and its (mis)handling of legislative authority for intelligence collection under Section 702 of the Foreign Intelligence Surveillance Act (FISA) which serves as the statutory basis for collecting foreign intelligence by targeting the communications of foreigners located abroad. Despite knowing all year long that Section 702 had a December 31, 2017 sunset date, and with that deadline for renewal staring it in the face, Congress punted, pushed the expiration date for Section 702 to January 19, 2018 as part of the stopgap continuing resolution passed to avoid a government shutdown, and disbanded for its holiday recess. Reaching this state of affairs required an extraordinary level of legislative inertia largely reflecting the excessive handwringing and lamentations of those relatively small, but highly vocal, opponents of FISA Section 702 who apocryphally insist that this valuable collection tool, at least insofar as implemented by the Intelligence Community, violates the Fourth Amendment and is the harbinger of an Orwellian surveillance state.

Fortunately, insofar as the collection of important foreign intelligence is concerned, congressional fumbling has not yet required that the National Security Agency (NSA) terminate Section 702-authorized collection on the 106,000+ foreign targets using selectors currently tasked for acquisition by the NSA.[2] Since Section 702 permits the Attorney General and the Director of National Intelligence (DNI) to jointly authorize, for a period of up to one year, the targeting of foreigners to acquire foreign intelligence, and since the current Section 702 certifications were approved by the Foreign Intelligence Surveillance Court (FISC) on April 26, 2017, authority exists to continue current collection until those certifications expire.

Nonetheless, this situation is readily recognizable as an undesirable state of affairs by anyone concerned about the proficiency of U.S. intelligence capabilities. While Section 702 certifications authorize collection by reference to specific categories of foreign intelligence information as detailed in the certification (as opposed to designating individualized targets), the possibility now exists that a potential new target might surface communicating foreign intelligence information that fails to ‘fit’ within an authorized category found in the April 2017 certification. In this circumstance, the legislative authority by which the Intelligence Community can pursue Section 702 collection is hanging by a thread, and will now expire in two weeks.

Nearly a year ago, the Brookings Institution noted that “one of the intelligence community’s most important collection programs [was] set to expire on December 31, 2017” and that “the failure to reauthorize [Section 702] would deal a body blow to the intelligence community.”[3] Yet, as of December 31, although five separate bills[4] have been introduced relating to the reauthorization of Section 702, Congress was unable to nurse any one of them across the legislative finish line to insure the continuity of this “critically important [foreign intelligence] tool.”[5]

Despite the December 31 expiration date, a group of legislators in both houses of Congress demanded that congressional leadership eschew any effort to extend Section 702 by attaching its reauthorization to “must pass” legislation before the end of the year.[6] Ten senators and 34 House members provided their signatures to two letters sent to their respective chambers’ leadership demanding that any renewal of Section 702 be introduced and debated as standalone legislation.[7] As is apparent from the wording of this correspondence, the signatories are not noted advocates of the current Section 702 collection program (“Section 702 Program”)[8] and, while their numbers fall well short of the necessary votes to terminate or significantly neuter the Program’s capabilities as they existed prior to December 31, their insistence on a full debate attendant to any renewal signifies the impact that Section 702 opponents have had in raising privacy and civil liberties questions in the minds of at least some legislators. Indeed, resort to the short term stop gap resolution was an obvious response to the demand made by this group.

And so, Section 702 is now on life support but, presumably, the essential components for a Section 702 reauthorization still can be found in the now pending bills, so a comparative summary of their most significant elements offers some illumination on what might be debated and, ultimately, included in final legislation.[9]

With the end-of-2017 deadline no longer looming over the legislative process and the recent demand for open debate regarding any renewal, there should be some opportunity for more thoughtful consideration of the security vs. privacy conundrum that has accompanied Section 702 since its initial enactment in 2008. As reflected in several of the entries found in the comparison of the various legislative proposals, this particular issue continues to dominate the Section 702 renewal dialogue; but, such a discussion can be productive only if it fairly embraces and recognizes the value of Section 702 collection in accomplishing the broader objectives of U.S. intelligence policy.

Thus, one must wish that the forthcoming legislative deliberation considers that, since the fall of the Soviet Union, the Intelligence Community’s mission has morphed from the traditional role of monitoring hostile powers and gathering information for policymakers to operating in a far more asymmetric threat environment against diverse targets using a broad and ever-expanding collection of sophisticated communications facilities. Many of these targets spurn long-established internationally accepted norms of conduct and readily engage in depredations exposing civilian populations to dangers unknown to past generations. For many of these targets, their principal bête noire is the United States.

The primary function of any government is the protection of its citizenry, an immensely more difficult task in the contemporary threat environment. Given those difficulties, there is an understandable urge to employ every advantage offered by modern technology in pursuit of such protection. Good intelligence is generally considered essential to success in combat, covert action, or the development of effective homeland security policy, Consequently, other than when engaged in actual combat or the aggressive physical defense of national interest, the day-to-day task of protecting U.S. citizens and insuring an effective homeland security posture falls, to a significant degree, on the success of the efforts of the Intelligence Community.

In today’s communications environment, intelligence functions involving electronic surveillance admittedly pose potentially the most pervasive intrusion into the privacy of U.S. persons while simultaneously offering one of the most fruitful sources of information acquired by the Intelligence Community for U.S. policymakers.[10] The authority provided by Section 702 is recognized as an extraordinarily valuable intelligence capability that produces unique intelligence product unavailable from other sources but, as is repeatedly voiced by critics, the breadth of that capability poses a potential infringement on the privacy of all who use communications facilities subject to Section 702 surveillance.[11]

Since, by statutory definition, Section 702 is limited solely to targeting foreigners located abroad to obtain foreign intelligence information, U.S. person communications are acquired only incidentally to collection on a foreign target. To be precise, the privacy ‘intrusion’ here takes the form of incidentally acquiring the communications of those U.S. persons who communicate with foreigners located abroad using communication selectors that, because of the reasonable likelihood that those selectors are being used to transmit foreign intelligence information satisfying one or more criteria contained within a FISC-approved Section 702 certification, have been properly targeted for Section 702 collection pursuant to targeting procedures that also have been approved by the FISC. Subsequent retention, use, and dissemination of any information derived from these incidentally collected communications is governed by minimization procedures also approved by the FISC. Thus, the universe of communications triggering the privacy protestations advanced by Section 702 opponents is limited to those to or from that subset of U.S. persons communicating with foreigners located abroad whose activities have satisfied the targeting requirements of a Section 702 certification.

Without deprecating the concerns of those who see the NSA sweeping up their every email or web search, U.S. intelligence policy should not abandon foreign intelligence collection techniques properly targeted against foreigners using a congressionally-authorized acquisition program that has received repeated judicial approval simply because that collection affects the subjective privacy concerns of a segment of U.S. person communicators who elect to communicate with those same properly targeted foreigners. In the absence of a legal mandate demanding otherwise, the national security benefits derived from Section 702 collection activities should not be subordinated to individual privacy concerns no matter how stridently advocated by that minority of U.S. person communicants choosing to correspond electronically with foreigners who happen to be Section 702 targets.

Prudently developed intelligence and national security policies recognize that the U.S. government should employ every available tool to protect the nation’s citizens consistent with the legal standards, constitutionally mandated and otherwise, that form the nation’s governing framework. Foreign intelligence electronic surveillance, in general, and FISA Section 702, in particular, constitute what is likely the most intensely overseen, copiously reported, and highly regulated government program undertaken by the Intelligence Community. Given this existing regulation and oversight, Congress should resist the temptation to mollify Section 702’s inveterate vocal critics, who will never be truly appeased until the Program’s most valuable collection capabilities are effectively vitiated, by saddling this critical intelligence tool with still more legally unnecessary retardants. Unfortunately, nothing in the Section 702 renewal process, to date, inspires confidence in the sudden appearance of such legislative fortitude.

Although the extension of Section 702 authorized in 2012 has now lapsed, there is no logically credible basis supporting any conclusion other than that Congress will ultimately act to resurrect this collection authority in some form. Even the USA Rights Act, which is seriously flawed as intelligence policy on a multitude of levels,[12] contemplates renewing Section 702 as a collection program, as does the December 15, 2017 letter sent to the Senate leadership demanding that any Section 702 renewal be considered as standalone legislation.[13] Of course, the question that lingers is: what form will a reauthorization now take? At this point, an extension in the range of 4-6 years seems likely coupled with some form of statutory restriction on “about” collection.[14] Additional restrictions may also be applied to the use of U.S. person identifiers in querying the Section 702 database and/or the ‘unmasking’ of U.S. person identities in intelligence reporting, but these issues are more politicized making legislative consensus problematic.

By all means, have the full and open debate recently demanded by a coterie of legislators in each chamber: the merits of Section 702 should be readily recognizable to all but those devoted to a utopian view of privacy rights or a distorted reading of the Fourth Amendment. As disappointing as one finds the legislative process, and there are countless reasons for disenchantment, a modicum of responsibility for the security of the American people should finally compel the Congress to produce a reauthorization of FISA Section 702 in a form that preserves its most important intelligence collection capabilities while resisting the temptation to strangle it with additional, gratuitously pointless, regulation.

About the author:
*George W. Croner
previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers

Source:
This article was published by FPRI

[1] Section 702 has been described as the “crown jewel” of the Intelligence Community’s surveillance authorities. See, e.g., Robyn Greene, OTI’s Reform Priorities for Section 702 of the FISA Amendments Act, at 2, Open Technology Institute (May 2, 2017).

[2] This figure is derived from estimates furnished by the Director of National Intelligence (DNI). See Statistical Transparency Report Regarding the Use of National Security Authorities for 2016 at https://icontherecord.tumblr.com/transparency/odni-transparencyreport-cy2016.

[3] Benjamin Wittes, “To Preserve an Important U.S. Intelligence Tool, Trump Needs to Set a Different Tone,” Brookings Institution, January 29, 2017.

[4] The pending FISA reauthorization legislation consists of (1) the USA Liberty Act (H.R. 3989) (introduced by House Judiciary Chairman Bob Goodlatte on 10/6/2017); (2) the FISA Amendments Reauthorization Act of 2017 (S. 2010) (introduced by Senate Intelligence Committee Chairman Richard Burr on 10/25/2017); (3) the USA Rights Act (introduced by Senator Ron Wyden on 10/24/2017); (4) the House version of the USA Rights Act (introduced by Rep. Zoe Lofgren on 10/25/2017); and (5) the FISA Amendments Reauthorization Act of 2017 (H.R. 4478) (introduced by House Intelligence Committee Chairman Devin Nunes on 11/29/2017).

The House and Senate versions of the USA Rights Act are virtually identical and will be treated collectively. Although there are both House and Senate bills titled the FISA Amendments Reauthorization Act of 2017, there are material differences between these two pieces of legislation and they will be discussed individually.

Previous reviews of this Section 702-related FISA legislation have appeared in FPRI’s E Notes: What’s To Be Found in the USA Liberty Act, FPRI E-Notes, October 20, 2017; Congress Skirmishes Over FISA Section 702: Will it Preserve the Intelligence Community’s ‘Crown Jewel’ or Neuter It?, FPRI E-Notes, November 1, 2017; and The Gun Lap: FISA Renewal in the Homestretch, FPRI E-Notes, December 6, 2017.

[5] Wittes, “To Preserve an Important U.S. Intelligence Tool, Trump Needs to Set a Different Tone,” Brookings Institution, January 29, 2017.

[6] Charlie Savage, Lawmakers Warn Against Any Attempt to Jam 702 Surveillance Reauthorization Without a Real Debate, Power Wars Blog by Charlie Savage, December 15, 2017. Savage’s article includes the texts of both the December 13, 2017 letter to the House leadership and the December 15, 2017 letter to the Senate leadership.

[7] Id.

[8] Notably, while demanding “full and open debate and amendment” on any Section 702 renewal legislation, the Senate letter did acknowledge that “Section 702 is an important national security tool and, with appropriate protections for privacy and civil liberties, Congress should reauthorize it.” Id.

[9] The attached chart expands upon an earlier comparison of pending FISA reauthorization legislation included by Charlie Savage in his Power Wars Blog. See, Charlie Savage, 702 Surveillance Legislation: Adding Wyden-Paul ‘USA Rights Act’ to the mix. Bonus: a chart comparing differences with SSCI/Burr & Goodlatte/Conyers HJC bills, October 24, 2017.

[10] For example, by 2014, approximately 25% of counterterrorism reports issued by the NSA were based, in whole or in part, upon Section 702 collection. Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, July 2, 2014, at 10. Additionally, a 2012 analysis, found that Section 702 collection was the source for 1,477 separate items or “four items per day for the President’s daily intelligence briefing.” Loren Thompson, Why NSA’s PRISM Program Makes Sense, Forbes, June 7, 2013.

Although similar calibrations of Section’s 702 value remain classified, neither the volume of Section 702 collection nor its ubiquity in intelligence reporting is likely to have diminished.

[11] When operated consistently with FISC-approved certifications and their accompanying targeting and minimization procedures, courts have repeatedly concluded that, whatever the subjective privacy views of its critics, Section 702 collection does not violate the Fourth Amendment. Consequently, although opponents frequently couch their opposition to Section 702 and their “backdoor search” objection in constitutional terms, no court ever has agreed that searching the Section 702 database of communications already lawfully collected pursuant to a FISC-approved certification constitutes a separate “search” implicating Fourth Amendment rights.

Moreover, no instance of intentional circumvention or violation of the procedures or guidelines governing the Section 702 collection program has ever been found. Office of the Director of National Intelligence “Fact Sheet” relating to the “Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) – 13th, 14th and 15th Joint Assessments” at 1 available at www.dni.gov//Overview_Fact_Sheet.

[12] The many defects in the USA Rights Act are covered in Congress Skirmishes Over FISA Section 702: Will it Preserve the Intelligence Community’s ‘Crown Jewel’ or Neuter It?, Foreign Policy Research Institute E-Notes, November 1, 2017.

[13] As previously noted, while demanding “full and open debate and amendment” on any Section 702 renewal legislation, the Senate letter acknowledged that “Section 702 is an important national security tool and, with appropriate protections for privacy and civil liberties, Congress should reauthorize it.” Charlie Savage, Lawmakers Warn Against Any Attempt to Jam 702 Surveillance Reauthorization Without a Real Debate, Power Wars Blog by Charlie Savage, December 15, 2017.

[14] “About” collection refers to the practice of acquiring communications that are to, from, or about a particular target. This form of collection has been a particular focus of critics who contend it improperly expands the universe of incidentally collected U.S. person communications. The NSA discontinued “about” collection earlier this year but there currently is no legislative prohibition against its resumption.


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Published by the Foreign Policy Research Institute

Published by the Foreign Policy Research Institute

Founded in 1955, FPRI (http://www.fpri.org/) is a 501(c)(3) non-profit organization devoted to bringing the insights of scholarship to bear on the development of policies that advance U.S. national interests and seeks to add perspective to events by fitting them into the larger historical and cultural context of international politics.

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