Yet ditching the law would rebuild the wall between foreign intelligence gathering and domestic law enforcement that made the Sept. 11, 2001, hijackers harder to detect. It can be improved instead, preserving important national security powers and Americans’ privacy.
Passed in 2008, Section 702 governs what had been a secret President George W. Bush-era program of warrantless surveillance of foreigners’ communications, adding critical guardrails on collecting targets’ calls, emails and more. Reauthorized in 2012 and 2017, the provision has proved to be vital.
Data gathered under this program has helped foil terrorist attacks, spy rings, assassination plots and cyber intrusions into critical infrastructure. It has also detected election interference, illegal technology exports and fentanyl imports. According to the National Security Agency, 59 percent of the items in the President’s Daily Brief last year cited signals intelligence obtained via 702.
The program allows the government to target specific non-Americans believed to be operating outside the country and likely to communicate foreign intelligence information. It does not permit bulk data collection. Although 702 cannot be used to target Americans, intercepting the communications of foreigners inevitably leads to the incidental collection of conversations with or about Americans.
Whether that information should be accessible to the FBI without a search warrant remains controversial, but there are good reasons it should be. The data is critical to combating Chinese intelligence officers who regularly reach out to hundreds of Americans in hopes of turning them into spies for Beijing. The information helps the bureau ascertain whether someone is unwittingly communicating with a would-be handler and needs a defensive briefing or they’re deeper into the recruiting cycle, in which case the FBI can pursue a traditional FISA warrant to target the potential traitor.
But there remains potential for witting or unwitting abuse. The FBI misused the authority more than 278,000 times between 2020 and early 2021, according to a Foreign Intelligence Surveillance Court opinion unsealed in May. These searches failed to meet one or more of the three-prong test to query the database: Agents must have an authorized purpose, a reasonably designed search that’s not overly broad and a specific factual basis to believe that they’re reasonably likely to retrieve foreign intelligence information.
Agents searched the 702 databases to check whether people arrested at Black Lives Matter protests and following the Jan. 6, 2021, Capitol insurrection had links to foreign intelligence services. One person searched for the names of 19,000 donors to a congressional candidate. A court opinion unsealed in July revealed that the FBI improperly queried the names of a U.S. senator and a state senator, as well as the Social Security number of a judge. Rep. Darin LaHood (R-Ill.) said in March that he was notified that his name was wrongly used in an FBI search of 702 data. Other noncompliant searches have included the names of prospective FBI employees, journalists and crime victims.
Over the past few years, the FBI has issued more detailed guidance and implemented several changes. Agents must type in a case-specific justification for why a search is necessary instead of selecting from a drop-down menu of generic rationales. Anyone with access to the material must receive annual training. An FBI attorney must preapprove any “batch job” that would result in more than 100 searches. Since last year, the deputy FBI director personally signs off on queries involving elected officials, members of the media, academics and religious figures.
These changes have resulted in a more than 90 percent drop in FBI queries of 702 data; the FBI searched for information on 119,383 Americans from December 2021 to November 2022, according to an April report from the Office of the Director of National Intelligence, down from 2,964,643 the year before. For context, the government targeted 246,073 foreigners for collection last year.
To prevent a future administration from winding back these reforms or weaponizing the system against political opponents, Congress ought to codify them into law — and go further. To prevent backdoor searches on Americans, the FBI should be banned from searching 702 databases for evidence of crimes not related to national security. Records show that just 16 such queries were conducted last year, and 14 of them were run as part of the discovery process to prepare for criminal trials, so this should be an easy concession.
President Biden signed an executive order last year prohibiting 702 collection from occurring for purposes such as suppressing free expression by individuals or the media and restricting the targeting of people based solely on their ethnicity or religion. This should be written into the law, and leaders of the agencies that use the data should be required to attest to their compliance every year.
While supporters point out that Section 702 is the most openly debated surveillance program in the world, it would nevertheless benefit from more transparency. The government could declassify the various reasons information is collected under 702 — for example, counternarcotics — and how often collection occurs under each. The NSA also owes the public at least a rough estimate of how much information is unintentionally picked up about Americans.
But requiring warrants for every new search of data that has already been legally collected is neither operationally feasible nor constitutionally necessary. Investigators might be searching 702 databases for a phone number or an email address to see whether someone is the victim of malign activity, such as hacking. There wouldn’t be probable cause to get a warrant against the potential victim, but that doesn’t mean the search violates that person’s Fourth Amendment right to privacy or that it lacks a clear connection to national security.
Matt Olsen, head of the Justice Department’s National Security Division, testified in June that reauthorizing 702 is “perhaps the single most consequential national security decision that this Congress will make.” This is no exaggeration. Congress still has time to get it right.
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