The House of Representatives Judiciary Committee held a hearing Wednesday on Section 702 of the Foreign Intelligence Surveillance Act. The committee, which has jurisdiction over FISA, aims to determine whether Congress should reauthorize 702, which expires Dec. 31. The subject of public scrutiny regarding the government’s secrecy surrounding it, 702 aims to thwart terrorism by authorizing U.S. intelligence agencies to collect information on foreign nationals located overseas.
Critics of the program argue the program’s reach, in practice, is far too broad, and the government doesn't provide transparency about the data it's using and collecting, for what purposes and on whom. Under the 2008 FISA Amendments Act, the government is forbidden from collecting intelligence via Section 702 on persons “reasonably believed” to be within the U.S. or even a U.S. person outside of U.S. borders. But critics say there’s reason to believe U.S. persons are often incidentally the target of investigations, despite the rules stating otherwise, and that the secrecy surrounding intelligence operations allows it to happen en masse.
The Judiciary heard testimony from four witnesses Wednesday, who unanimously agreed 702 should be reauthorized. But, said some, there must be significant reforms.
The frustration with intelligence agencies’ secrecy is in part the result of an April 2016 inquiry, during which the Judiciary Committee asked former Director of National Intelligence James Clapper for a public estimate of 702’s impact on U.S. citizens. Civil liberties groups have lobbied for the same information. Ranking Member of the committee Rep. John Conyers, R-Mi., said the committee has yet to receive such estimates.
“I expect better,” he said, adding, “We will not simply take the government’s word on the size of so-called ‘incidental collection.'”
“Congress needs to revive PCLOB.” -Adam Klein, Center for a New American Society
Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University School of Law, said the way Section 702 is being used is not how Congress intended. While there’s been “essentially no evidence of intentional misuse, what we have seen is mission creep,” she said at the hearing. “So a law designed to protect against foreign threats has become a tool for ordinary domestic law enforcement.”
Not only is that a concern for American citizens’ expectations and trust that Congress will protect them, but it also puts at risk U.S. business interests abroad. Section 702 is often referenced in Privacy Shield discussions, for example.
Adam Klein, senior fellow at the Center for a New American Security, supports 702’s reauthorization and cited the Privacy and Civil Liberties Oversight Board’s 2014 unclassified report on the program as a strong indicator of its legal integrity. But he said PCLOB’s current dormancy – it currently only has two of its required five members, and its chairmen stepped down last summer – is a significant barrier to public trust in appropriate government oversight.
“Congress needs to revive PCLOB” for Section 702 to remain a valuable surveillance tool, he said, or it’s not sustainable.
In his written testimony, Jeff Kosseff, CIPP/US, assistant professor in the Cyber Science Department at the United States Naval Academy, agreed with Klein.
“Indeed, without PCLOB’s thorough and transparent evaluation of Section 702, it would be difficult, if not impossible, to evaluate the constitutionality of Section 702,” he wrote.
Admitting the “incidental collection” Conyers noted does happen, has been documented, and likely occurs in substantial volume, Klein said more transparency around the number of U.S. persons identified via Section 702 is also essential.
But April Doss, who spent 13 years at the NSA and now works in private practice, said 702 strikes the right balance between national security needs and civil liberties. She said it’s a misconception that 702 represents bulk data collection and intelligence officials pouring through it at will. Rather, collection can only happen when an intelligence analyst “is able to articulate and document a specific set of facts to meet the statutory and procedural requirements for demonstrating” a specific, non-U.S. person who’s reasonably believed to be outside of the U.S. is likely to have foreign intelligence data.
“From a practical perspective, it would be far more intrusive on privacy and not feasible to come up with those numbers in a meaningful way.” -April Doss, partner, Saul Ewing
Lawmakers frequently asked the witnesses to estimate how many queries are run on U.S. persons. Only Goitein would fathom a guess, but hesitantly. She said after a year of asking for actual calculations, the government has failed to provide a report. She said, if you conservatively assume that even one of out every 100 foreign targets’ intercepted communications contained data on a U.S. person, that’s still millions of Americans.
“I would like not to assume, I would love to have the facts,” Goitein said.
But, lawmakers wanted to know, is it even possible to come up with those numbers?
Doss said no, and, she said, trying to do so might have an adverse effect.
“From a practical perspective, it would be far more intrusive on privacy and not feasible to come up with those numbers in a meaningful way,” she said. When the intelligence community goes after a foreign target, there’s no way to tell with whom the target will be in communication, and looking for clues as to who the person is to determine nationality and citizenship, may in fact be privacy invasive to the second party involved.
Goitein disagreed, saying the NSA uses IP address as a proxy for country in filtering out domestic communications. Doss countered that just because IP address indicates country, doesn’t mean it’s not a U.S. person communicating from that country.
But Goitein countered, “If it’s reliable enough for that purpose, it’s reliable enough for the estimates we’ve sought.”
Prior to the unclassified hearing, the committee held a closed session to hear testimony from the Federal Bureau of Investigation, National Security Agency, Department of Justice and the Office of the Director of National Intelligence.
More hearings on Section 702 are expected prior to its December expiration date.