We Risk Returning to Pre-9/11 Status Quo If We Don’t Maintain Section 702
David Inserra /
Section 702 of the Foreign Intelligence Surveillance Act, which has proved vital for keeping the U.S. safe from terrorists, is set to expire at the end of this year.
Section 702 has been described as the “crown jewel” of U.S. intelligence for its intelligence gathering on foreign actors, most notably terrorists.
In a recent Washington Post op-ed, Rachel Brand, the No. 3 official in the Trump Justice Department (and a member of President Barack Obama’s Privacy and Civil Liberties Oversight Board), argues that 702 “has prevented multiple terrorist attacks, including an al-Qaeda plot to detonate explosives in the New York subway.”
Indeed, the National Security Agency has identified over a dozen instances where 702 was essential to foiling terrorist plots and conspiracies.
Section 702 is not a bulk collection of data, or a way for the government to spy on Americans Before any data can be a collected, a specific target that meets specific national security criteria is required. Furthermore, that target must be located outside the U.S. and there must be a reasonable expectation that the target is not a U.S. person. If an American emails with the foreign target, the government can collect those emails but can go no further into Americans’ emails.
So after collecting this foreign intelligence, of course the U.S. government uses it to keep Americans safe. One way the information is used is by sharing information from these foreign targets with the FBI when the intelligence relates to a domestic security investigation.
While the FBI has historically ended up making queries of 702 collected information from fewer than 5 percent of all 702 targets, this information is essential to keeping the U.S. homeland safe.
It is for this reason that intelligence and security leaders from both parties and multiple administrations have implored Congress to maintain this program as it is.
Unfortunately, some in Congress are considering changes that would rebuild the walls between our intelligence agencies that existed before and were to blame for 9/11. These proposals would limit the FBI’s ability to use foreign intelligence in its investigations.
Intelligence officials have warned that these new limits, such as requiring a warrant before the FBI can query 702 data, would prevent different parts of the intelligence community from sharing with others.
As just described, this is intelligence lawfully gathered from foreign intelligence targets. The American judiciary has repeatedly agreed that 702 collected information is legally collected and retained. There is no reason to add a warrant requirement or other barriers. We don’t make the FBI get a warrant just to access the information that it already has on hand in other cases. Of course we should allow the FBI to query this information to help put together the dots of a domestic terror plot.
Section 702 is not only effective and legal, but it is also subject to rigorous oversight by all branches of government. There is the FISA court, the Privacy and Civil Liberties Oversight Board, the congressional intelligence committees, and the intelligence organizations themselves that all play a role in ensuring these programs are operated correctly.
We must not return to a pre-9/11 mindset where we hide information from ourselves. Congress should reauthorize 702 in its current form.