U.S. Intelligence Officials Warn of Potential Attacks in the U.S.
Following the recent attacks by Hamas militants on Israel, U.S. intelligence officials have expressed concerns about the potential for attacks within the United States. They are urging Congress to reauthorize a key provision of the Foreign Intelligence Surveillance Act (FISA) before it expires on December 31.
Section 702 and the Debate Over Renewal
The provision in question is Section 702 of the FISA, which allows the government to collect the communications of certain foreigners abroad without a warrant. This includes text messages, emails, and phone calls. However, the provision has faced opposition from both Republicans and Democrats who have different concerns about its use.
FBI Director Stresses the Importance of Section 702
FBI Director Chris Wray recently testified in a hearing on worldwide threats, emphasizing the critical role that Section 702 plays in protecting the homeland from foreign threats. He warned that the loss of this provision, or its reauthorization in a narrowed form, would pose significant risks.
"Loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks," said Wray. "For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats."
House Republicans Express Concerns Over Section 702
In the Republican-led House, Speaker Mike Johnson of Louisiana and House Judiciary Chairman Jim Jordan of Ohio have both voiced their criticisms of Section 702. In a letter to FBI Director Christopher Wray in 2022, they called for reforms to address their concerns about FBI oversight of the program and their fears that the FBI has been disregarding Americans' constitutional rights while using the authority granted by Section 702.
Both Republicans and Democrats share concerns about the privacy of Americans' conversations that are swept up under Section 702. While the program is designed to collect communications of foreigners outside the U.S., it may also inadvertently gather information about Americans who are in contact with these foreigners.
It is important to note that intelligence agencies are not permitted to specifically target Americans without obtaining a warrant, as doing so would violate the Fourth Amendment.
Various mechanisms, such as court review of intelligence collection, reports to Congress, and reviews by intelligence community inspectors general, are in place to prevent misuse of Section 702. However, critics argue that past failures by the FBI raise concerns about the effectiveness of these safeguards.
Source: DNI.gov
FBI Implements Reforms Following Unauthorized Queries
In 2018, the Foreign Intelligence Surveillance Court (FISC) revealed that the FBI had conducted thousands of queries for Americans' data without proper justification.
In response to this revelation, the FBI took remedial measures to address the issue. These measures included changing its query procedures and conducting internal audits. The FBI also implemented stricter consequences for unauthorized queries by its employees.
The FISC acknowledged that it was encouraged by the FBI's reforms and concluded that these efforts were consistent with the requirements of the Section 702 statute and the Fourth Amendment.
Source: FBI.gov
"It's going to be constant learning and adapting to ensure that there's a protection of American civil liberties," said a former FBI executive assistant director of intelligence and now, the current president of Bow Wave LLC, a national security services company.
In April, the Office of the Director of National Intelligence released data showing that FBI searches of U.S. citizens' electronic data under the warrantless surveillance program plunged significantly in 2022, after the FBI's reforms were implemented. Searches dropped from more than 3.4 million in 2021, to just over 204,000 in 2022, a decline of nearly 94%.
FISA Section 702 origins
Section 702 was enacted by Congress in 2008 to update the 1978 Foreign Intelligence Surveillance Act, to address the advent of email and cell phones. Terrorists, the DNI points out, including those responsible for the 9/11 attacks, had email accounts serviced by U.S. providers, which meant that prior to 702, the government had to meet a probable-cause standard to obtain these communications.
The provision gives the government the authority to collect this information foreigners abroad without a warrant and authorizes targeted surveillance of non-U.S. persons believed to be outside of the U.S.
Jill Sanborn, strategic advisor and national security expert who served as the FBI's executive assistant director for national security, said national security measures would look vastly different without this tool.
"I remember the world without 702," Sanborn said. "If we don't have this tool, the ability to protect the American people will decrease exponentially because we will not have a collection authority that allows intelligence officials to get ahead of the various foreign intelligence threats transiting the U.S. telecommunication infrastructure."
Section 702 has contributed intelligence to high-priority missions, including the operation against al Qaeda leader Ayman al-Zawahiri in 2022, which disrupted planned terrorist attacks by al-Qaeda at home and abroad, according to the intelligence community.
And the statute also led to the takedown of Chinese hackers attempting to access U.S. critical infrastructure and uncovered plots by Iranian adversaries to kidnap and assassinate U.S. citizens and government officials.
Skule said only a handful of successful 702 examples are unclassified, but they demonstrate how vital the provision is in thwarting national security, cyber and counterintelligence threats.
"Look at Colonial Pipeline — are we ok with gas pumps on the East Coast shutting down repeatedly?" Skule said. "We don't get to the investigative background on cases like that without 702."
Sanborn agreed, saying the ability to connect dots and have an intelligence picture to help fend off or respond to intrusions like the Colonial Pipeline cyber attack would be nearly nonexistent without 702.
"Most people don't realize that 702 doesn't just help thwart terrorism and threats of violence, but it also allows intelligence agencies like the FBI to alert companies that their systems may have been compromised by a foreign adversary," Sanborn said.
Some in Congress want more changes to 702
By the time Congress returns from its Thanksgiving recess, it will have about a month to act before the provision expires. Some lawmakers are calling for more changes to 702. A bipartisan group of senators and House members introduced a bill earlier this month that would reauthorize the provision for four years with significant changes, including requiring a warrant — with limited exceptions.
The exceptions include imminent threats, defensive cybersecurity purposes and locating and rescuing hostages.
"Our bill continues to give government agencies broad authority to collect information on threats at home and abroad, including the ability to act quickly in emergencies and settle up with the court later," Democratic Sen. Ron Wyden of Oregon, one of the bill's cosponsors, said in a statement. "But it creates much stronger protections for the privacy of law-abiding Americans, and restores the warrant protections that are at the heart of the Fourth Amendment."
The lawmakers say the bill has the backing of dozens of civil society organizations, including the American Civil Liberties Union, which has supported allowing the law to expire without significant reforms and which sued unsuccessfully in 2013 to have the 702 provision declared unconstitutional.
"This legislation would address the countless abuses of Section 702 we have seen from the government, and it would ensure the protection of Americans' Fourth Amendment rights," Kia Hamadanchy, senior policy counsel at ACLU, said in a statement after the bill's release.
A nation without Section 702
Despite the controversy, 702 reauthorization remains a top priority for government officials.
The President's Intelligence Advisory Board (PIAB) assessed 702's effectiveness and provided a set of recommendations for the president's consideration.
The Board said that allowing Section 702 to lapse could lead to "one of the worst intelligence failures of our time" and also recommended measures to help restore trust in the tool, rather than eliminating it.
"No one is saying we shouldn't have reforms or not fix things that need improvement," Sanborn said. "What it comes down to is this: can the United States afford a self-inflicted intelligence failure? Because if Congress lets 702 lapse and it results in an attack or a significant foreign cyber intrusion on our soil, it will be self-inflicted."
