The Hill Op-Ed: Reauthorizing Section 702 of the Foreign Intelligence Surveillance Act is a national security imperative

This op-ed originally appeared in The Hill on August 16, 2023.

A new report confirms what national security leaders have long warned: If Congress fails to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), the United States stands at the brink of a self-inflicted national security calamity.  The study -- by an independent group of intelligence experts called the President’s Intelligence Advisory Board (PIAB) -- did not mince words: “history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time.”

The PIAB’s report on FISA Section 702 underscores the urgency that Congress must swiftly reauthorize this critical provision of U.S. national security law before it expires this year.

Section 702 authorizes the intelligence community, under court supervision, to target communications of non-Americans located overseas. This law ensures that the government can quickly obtain critical intelligence while protecting the rights of Americans.  Allowing Section 702 to lapse would return our country to a time when we were blind to grave threats in time to counter them.

In its 702 report, the PIAB says that FBI use of 702 ensures there is “no ‘gap’ between foreign-focused collection and domestic disruption efforts, and that there is no “wall between its law enforcement and intelligence functions.”  The Board notes that “[t]his was one of the most critical lessons learned after 9/11 and the Fort Hood shooting.” It is a lesson we cannot afford to forget.

In its report, the PIAB did not shy away from the law’s primary controversy: the FBI’s access to 702 information. While Section 702 allows collection only against targeted foreigners overseas, those foreigners may communicate with Americans.  In investigating threats against the homeland, the FBI can query a small subset of 702 collection for information that has already been lawfully collected using terms such as the name of a U.S. person or company or a phone number with the area code of a U.S. city.  The ability to query this information is critical to identify potential victims of foreign plots and connect the dots to terrorists, spies, and other hostile actors inside the United States. As the PIAB put it, “without U.S. person queries, the government would be unable to determine how [foreign intelligence] threats affect American interests."

There are some, however, who object to these queries and point to incidents in which the FBI has failed to adhere to court-approved rules. These critics propose a drastic and unwarranted solution: changing the law to require a court order before it can access lawfully collected information already in its databases.

The reality is this change would be operationally devastating. The PIAB warns bluntly that imposing such a requirement “would prevent intelligence agencies from discovering threats to the homeland.”

To offer just a few real examples, the FBI has used these 702 queries to uncover the kidnapping and assassination plots of a foreign government in time to save victims; to reveal that Iranian hackers had conducted extensive research about a former senior U.S. official; and to identify Chinese hackers’ cyber intrusions into a network used by a key U.S. transportation hub.

These would be impossible if the FBI were required to stop and obtain prior court approval before acting. The standard for court approval, which includes that the target be an agent of a foreign power, could not be met when investigators are conducting queries to identify and protect victims of malign activity.  Even if some conceivable standard could be met, by the time the government submitted the filing and the court considered it would likely be too late, and these examples of real threats would have had different endings.

To be clear, compliance errors are serious matters; they matter to us and to the executive branch as a whole. That is why the Department of Justice and the FBI have already imposed additional privacy safeguards in response to past errors, including updated querying procedures and mandatory training to avoid unintentional queries.  In addition, FBI personnel now must obtain attorney approval to conduct sensitive queries and, in some cases, the personal approval of the Deputy Director of the FBI.

These steps are working, reducing FBI’s U.S. person queries by 93 percent in the first year and increasing the FBI’s query compliance rate. 

We in the executive branch are eager to work with Congress to turn the reforms that are already making this program better into law.  But let’s not blind the government from its own lawfully collected information—information it needs to keep Americans safe.  Following the recommendation of the 9/11 Commission, the PIAB now reaffirms the lessons that make reauthorizing 702 a national security imperative.