Section 702 of the Foreign Intelligence Surveillance act is set to expire in five weeks, and to hear current and former intelligence officials tell it, changing a single word in this statute will result in no less than the loss of American lives. This hyperbole is obscuring the nature of proposed legislative reforms and preventing a fact-based debate about how to protect everyday people from this broad surveillance authority. It's time to get some things straight.
Briefly, Section 702 passed in 2008 and permits the government to surveil overseas targets with the compelled assistance of U.S. communication providers. Under 702, the government secures annual approval from the FISA court to conduct the program, including approval for the rules governing how it will choose its overseas targets and how it will use the information it collects.
At no point does the court approve individualized targets, like a specific person, phone number or email address. Instead, the government self-certifies that the target is a non-U.S. person abroad and that the surveillance is for foreign intelligence purposes, which includes terrorism and espionage, but also broad purposes like to collect information relevant to national defense and foreign affairs of the U.S. Importantly, no pending reform proposals would change anything about this overarching structure.
But what happens to all the Americans who wind up in government databases, not because they are doing anything wrong, but because they simply talk to friends, family and business associates overseas? That is the central question holding up reauthorization. The government insists it should be able to conduct “back door” searches of the 702 database for known Americans’ information without any outside review and without any concrete evidence that these Americans are doing anything wrong.
In fact, it claims that requiring the FBI to obtain FISA court approval in non-emergency circumstances before accessing the content of Americans’ communications would hobble our counterterrorism effort.
The administration leans heavily on the the 2009 Najibullah Zazi case in opposing reform efforts, including a fix for backdoor searches, yet the Zazi case is the perfect example of how terrorism investigations would operate after a backdoor fix without delay or interference.
Zazi was an American citizen living in Colorado when he requested urgent bomb making instructions from a known al Qaeda operative who was under active 702 surveillance. Zazi was immediately identified through a national security letter and the government obtained a full probable cause FISA order to conduct electronic surveillance of Zazi. He and his conspirators were not only thwarted from bombing the New York subway but convicted in federal court. All without the use of backdoor searches at all.
How would the Zazi investigation turn out under literally any proposed piece of reform legislation today? Exactly the same. First - the government still has many non-702 authorities at its disposal including access to communications content and electronic records under both intelligence and criminal law, and emergency authorities in multiple statutes that would allow it to obtain all this data without prior court review. It could still issue national security letters and obtain FISA orders, and even use criminal tools to collect the data. But second, even if the government wanted to query 702 databases with Zazi’s email address, it could still do that under the emergency exceptions that are clearly written into every backdoor fix proposal.
Surveillance advocates’ preoccupation with the Zazi case belies one of two things: that they simply do not understand how the backdoor fix would work, or do, and are using the ticking time bomb scenario to scare members of Congress out of doing their job. Putting a judge between the FBI and Americans’ sensitive information in non-emergency situations does not prevent the government from accessing it all together — it only ensures there is an independent check and a factual basis to connect a known American to a true threat.
The government also claims court review of FBI access to Americans’ calls and emails will rebuild 'the wall’ between agencies and investigations and could lead to a 9/11-style attack in the U.S. However, the 9/11 Commission called the wall narrative 'misleading’ and found that no legal barriers prevented agencies from sharing the significant information they obtained on the 9/11 attackers with one another.
Even if true, our entire intelligence apparatus has been overhauled many times since 9/11 to encourage information sharing, including the creation of the Director of National Intelligence, the National Counterterrorism Center, fusion centers and the expansion of Joint Terrorism Taskforces. The law has also been amended dozens of times to give law enforcement and intelligence agencies more access to our information-without warrants and without probable cause - and to even permit the FBI to open “assessments” and collect information without a factual predicate. Inserting judges into the search for Americans’ information in non-emergency circumstances, in this one specific program, does not undo these significant and far-reaching changes.
Congress should reject these transparent attempts to prevent any meaningful oversight of these backdoor searches. It should instead require the FBI to obtain a court order when it wants to access the content of communications of known Americans. This leaves other 702 users focused on overseas threats like the NSA, CIA and NCTC unhindered. It also leaves the FBI free to access records and metadata without court review, and to query the database and confirm the existence of the content too. If the entire 702 program would fall apart under these limited - but crucial conditions - it isn’t really about foreigners, is it?
Michelle Richardson is the Deputy Director of the Freedom, Security and Technology Project at the Center for Democracy and Technology and a senior fellow at GW’s Center for Cyber and Homeland Security.
