Eatinger: Under the Hood of Renewed FISA Law

Robert J. Eatinger, Jr.
Former Senior Deputy General Counsel, CIA

Robert Eatinger, former senior deputy general counsel at the CIA, says the legislation that Congress just passed extending controversial surveillance authorities, known as Section 702 of the Foreign Intelligence Surveillance Act, still provides certain protections against misuse. With the U.S. Senate’s passage of the bill, the legislation heads to the White House for President Donald Trump’s signature.

Passing with a vote of 65-34, the FISA Amendments Reauthorization Act of 2017 is intended to arm the U.S. intelligence community with the authorities to monitor foreign intelligence targets’ communications that transit or are stored in U.S.-based communications infrastructure. The authorities came under fire in 2013 after unauthorized disclosures of information suggesting that communications involving Americans were also being swept up in the process.

Cipher Brief Cyber and Tech analyst Levi Maxey’s discussion with Eatinger is adapted for print below.

“The bill reauthorizes for six years and amends FISA Section 702 collection. It further contains provisions dealing with the Privacy and Civil Liberties Oversight Board; establishes whistleblower protections for intelligence community contractors; requires the comptroller general to study the United States’ classification system and the intelligence community’s methods for protecting classified information; and increases from one to five years the penalty for unauthorized removal and retention of classified documents or material.”

“By reauthorizing Section 702 collection, the bill avoids proposed limitations on the U.S. intelligence community’s authorities to collect information important for identifying and countering foreign threats.”

One of the criticisms of FISA 702 authorities by privacy and civil liberties groups pertained to what they called a “backdoor search” capability, whereby the FBI was authorized to search data collected on a foreign intelligence target for information such as email addresses and phone numbers of people in the U.S. without a warrant. Eatinger says this has now changed under the new law.

“The bill requires procedures to search Section 702-collected data for U.S. person information, and requires the FBI to obtain a court order to review the results of such searches for certain criminal investigative purposes.”

“The attorney general, in consultation with the director of national intelligence, is required to ‘adopt procedures consistent with the requirements of the fourth amendment to the Constitution of the United States’ to govern searching Section 702 data using U.S. person query terms. Those procedures must be approved by the Foreign Intelligence Surveillance Court (FISC).”

“Second, if the FBI, as part of an open criminal investigation not related to national security, wants to access the results of a search of Section 702 data conducted pursuant to such procedures for reasons other than to find and extract foreign intelligence, the FBI must obtain attorney general approval and secure an order from the FISC. The FISC may issue such an order only if it finds probable cause to believe that the contents of the communications would provide evidence of: criminal activity; contraband, fruits of a crime, or other items illegally possessed by a third party; or property designed for use, intended for use, or used in committing a crime.”

“The FBI would not need a court order if the FBI determines there is a reasonable belief that the contents could assist in mitigating or eliminating a threat to life or serious bodily harm.”

“Information concerning a U.S. person that was collected under Section 702 cannot be used in criminal proceedings as evidence against that person, unless the FBI obtains a FISC order to access the information, or the attorney general determines that the criminal proceeding affects, involves or is related to the national security, or it involves death, kidnapping, serious bodily injury, a specified offense against a minor, incapacitation or destruction of critical infrastructure, cybersecurity, transnational crime or human trafficking. The AG’s determination is not judicially reviewable.”

“The intelligence community is required to add to its annual FISA disclosure: the number of FISA-order targets known to be non-U.S. persons and known to be U.S. persons; the number of instances in which the Criminal Investigative Division of the FBI opened an investigation of a U.S. person who is not considered a threat to national security, based wholly or in part on Section 702 information; and the number of state or federal criminal proceedings in which the prosecution provided notice of its intent to enter into evidence or otherwise use or disclose any information obtained or derived from FISA, including Section 702.”

“The statute also bars intentional “about” collection except in limited circumstances.  That is, communications to and from a target may be collected, but the government may not use Section 702 to collect communications that refer to a target.”

Should the president sign off on the bill, it has been given a six-year sunset deadline, when it requires Congress to again take action to renew the authorities.

“I think the six-year sunset provision recognizes that the cost-benefit analysis for this authority is highly dependent on the severity of the terrorist – and other foreign – threat to the U.S. and its people, and that analysis should be redone periodically against the then-existing threat level.”

The Author is Robert J. Eatinger, Jr.

Bob is the founding Principal of SpyLaw Consulting for Business, LLC. Previously, Bob was the Senior Deputy General Counsel of the Central Intelligence Agency. He served as CIA’s Acting General Counsel from October 2013 to March 2014.  Before being named the Senior Deputy General Counsel, he served as CIA’s Deputy General Counsel for Operations from September 2009 to June 2013.  Bob also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in... Read More

Learn more about The Cipher Brief's Network here.


Share your point of view

Your comment will be posted pending moderator approval. No ad hominem attacks will be posted. Your email address will not be published. Required fields are marked *