Few would argue that the world is a safer place than it was on 9/11. So how has America avoided a massive, foreign-directed terrorist attack since then? One key has been the foreign collection program implemented under Section 702 of the Foreign Intelligence Surveillance Act. This lifesaving program is set to expire at the end of the year, unless Congress votes to extend it.
The program authorizes U.S. intelligence officials to mount and sustain surveillance on foreigners outside the country who are suspected of presenting a national security threat to the United States, friends and allies. The surveillance program has uncovered all kinds of invaluable information, from terrorist plots and changes in terrorist tactics to plans to spread weapons of mass destruction and escalate cyberattacks.
In the course of gathering this information, the Section 702 program has also uncovered information about American citizens in contact with the foreigners under surveillance. The architects of the law foresaw this happening and took pains to make sure that the program would be conducted in a way that respects the constitutional rights and privacy interests of all U.S. citizens. They even gave all three branches of government oversight responsibilities, to safeguard against abusive practices taking root in the program.
Still, critics of the Section 702 program from both ends of the political spectrum contend that it unlawfully and unnecessarily infringes on the privacy of Americans. They insist that the program should be terminated or at least reined in so that information that tangentially involves American citizens is not shared among intelligence agencies.
But neither of their main contentions, which are that the program violates civil liberties and suffers from inadequate oversight, stands up to examination. As for the accusation regarding violation of privacy rights and civil liberties, there is no evidence that the data collection program run by National Security Agency deliberately targets Americans. The agency follows rigorous procedures established to ensure that any suspect targeted for surveillance is neither inside the United States nor an American citizen.
Those procedures must be approved by the Foreign Intelligence Surveillance Court. What if the NSA, either incidentally or as part of an authorized investigation, collects information on someone subsequently determined to be a U.S. citizen? The agency must take extraordinary measures to protect that person’s identity. Following a minimization procedure, it will determine whether such information can even be retained. If the information pertains to an American in whom there is no national security interest, it may be deleted.
The FBI is subject to similarly stringent procedures for searching data collected under Section 702. Because of this protocol, the FBI has accessed only 4.3 percent of the information. In short, the Section 702 program explicitly focuses on non-American targets and contains multiple safeguards to protect the privacy of any Americans inadvertently caught up in the program. As for the charge of insufficient oversight, it is, in a word, laughable. No other information collection program run by the U.S. intelligence community is subject to such a high level of oversight. Moreover, nothing would do more to rebuild the barrier between foreign and domestic intelligence than to require additional warrants for already lawfully collected information.
In 2014, the Obama administration’s Privacy and Civil Liberties Oversight Board reviewed the Section 702 program and found it to be fully compliant with the law. Moreover, the board was pleased by the existing oversight and control mechanisms, and it noted that there was no evidence of the program having been abused. The congressional oversight measures currently in place are indeed thorough. The NSA must be able to demonstrate to the Foreign Intelligence Surveillance Court that, not only is every target of data collection both outside the United States and a non-American citizen, but each is associated with one of three specific national security categories.
To forestall the possibility of personal vendettas or other non-security interests leading to surveillance requests, no single individual at the NSA is authorized to make a collection request. Any request for a phone number or email address to be monitored undergoes independent review by at least three people before it is tasked within the NSA. Every collection request made by the NSA is independently reviewed by the director of national intelligence’s legal team and by the Department of Justice.
Every year, the Department of Justice and the director of national intelligence must give the FISC written descriptions of how NSA proposes to use this legal provision in the coming year and describe the controls that are in place to ensure that the proposed collection is lawfully implemented. Many other safeguards are in place as well.
The Section 702 program cannot be easily abused for political purposes, nor is it a “backdoor” that allows the warrantless collection of information. FBI Director Chris Wray recently likened placing limits on the Section 702 program to a “self-inflicted wound.” Failure to reauthorize the program would be a “step backward,” he said, one that would resurrect the barriers to information sharing that existed before 9/11 and allowed that plot to come to terrible fruition.
This piece originally appeared in The Hill on 11/01/17