In the legislative sphere, discussions are currently underway regarding the possible re-endorsement of Section 702 under the Foreign Intelligence Surveillance Act (FISA). This specific section is a critical tool for the intelligence community, facilitating the collection of invaluable information pertaining to diverse areas such as terrorism, arms proliferation, and cyber security threats. However, it is important to note that this is a warrantless surveillance program, and there exists compelling evidence that indicates potential misuse. Certain lawmakers have voiced their intention to withhold their approval unless substantial reforms are implemented within the Federal Bureau of Investigation (FBI).
To elaborate on the operation of Section 702, it is essential to underscore that the intelligence community can only gather data on non-U.S. individuals residing outside of U.S. territory who are presumed to possess, acquire, or communicate foreign intelligence information. The law strictly prohibits the targeting of U.S. citizens, irrespective of their geographic location, or anyone physically located in the U.S. Additionally, “reverse targeting” – surveilling a foreign individual with the objective of obtaining intelligence on an American – is not permissible under this section. Hence, while American citizens are safeguarded under the Fourth Amendment, foreign individuals on foreign soil do not enjoy similar protections.
From the perspective of the intelligence community, the Office of the Director of National Intelligence holds Section 702 in high regard, terming it an essential instrument. It played a decisive role in the elimination of Hajji Iman, the deputy leader of ISIS, by aiding officials in pinpointing his whereabouts. Similarly, FBI Director Christopher Wray has articulated that Section 702 is irreplaceable. He stated it has been instrumental in deflecting cyber threats from global adversaries, specifically Russia, Iran, and China.
Director Wray provided his testimony to Congress stating, “Almost everyday through our 702 intelligence efforts, we see evidence of China’s efforts to surveil and steal information about our military, about our advanced technologies, to hack our critical infrastructure and even to run influence and intimidation campaigns against Americans and Chinese dissidents here. And so without 702 the intelligence community would be blinded in an ever evolving digital world.”
However, despite these affirmations, concerns have been raised over possible misuse of the program. For instance, a federal judge’s opinion in October 2018 highlighted numerous FBI inquiries which were “not reasonably likely to return foreign-intelligence information or evidence of crime.” This encompassed searches that potentially gathered data on American citizens.
When questioned about the legitimacy of such activities during a congressional hearing, FBI Director Wray responded, “I think the judge’s opinion speaks for itself that it was not. I would say that it’s important the court did not find unlawful purpose or bad faith or anything like that. But that doesn’t make it any less unacceptable to me.” He proceeded to elaborate on significant improvements in compliance resulting from changes implemented under his leadership.
Despite these reassurances, skepticism persists among lawmakers. Representative Darin LaHood voiced his concern during a House Intelligence Committee hearing, stating, “How do you reassure or give confidence to the American people that civil liberties are going to be protected?”
An initial proposal by the Justice Department and intelligence community suggested continuing the program with minimal modifications, but it was promptly dismissed by lawmakers. Instead, they signaled their readiness to negotiate FISA regulations until the reauthorization deadline of December 31.