FISA Renewal ‘Critical’ for National Defense, Officials Say but Critics Demand More Privacy Safeguards

Controversy Surrounds Reauthorization of FISA’s Section 702

Section 702 of the Foreign Intelligence Surveillance Act (FISA) has been a topic of controversy since its adoption after the 9/11 attacks. It allows the United States’ 18 federal intelligence agencies to spy without a warrant on non-Americans overseas. However, many in Congress, especially Republicans, claim that the measure 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.

Proposed Revisions

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 their 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.

‘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.”

However, Rep. Austin Scott (R-Ga.) expressed concern that too much private information on American citizens is being swept up by intelligence agencies. He said, “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.”

What is FISA’s Section 702?

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.”

Conclusion

The reauthorization of FISA’s Section 702 is a contentious issue that has divided Congress. While some argue that it is critical to national security, others claim that it has been abused and needs to be revised. As the deadline for renewal approaches, it remains to be seen what changes, if any, will be made to this controversial measure.

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