Counterintelligence Privacy Officer's Insight: Section 702 Doesn't Intrude on Americans' Privacy
Every nation, no matter its strength, has been susceptible to deception from determined foreign enemies. This year, marked by ongoing wars involving nuclear states, unparalleled cyber extortion, and escalating global terrorism, the United States government faced the imminent expiration of a critical intelligence power. The effectiveness of national security investigations, particularly those that require swift responses like real-time cyber threats, was jeopardized by bureaucratic delays.
As cyber, physical, fraud, and insider threats converge, intelligence teams monitoring these complex issues are adapting to the rapidly changing digital communication landscape. Their support from legislators needs to meet contemporary needs.
We live in a period of unstable geopolitics and strategic ambiguities. The broad threat spectrum is becoming increasingly dynamic and complex. The previous year alone demonstrated that acts of state-sponsored terrorism against civilians, proxy wars on commercial shipping, and even regional conflicts are part of the modern world order. We witness the escalation of tensions between major powers in both the Atlantic and Pacific. We also observe the efforts of malicious actors in Russia, China, and Iran to aggravate social divisions and instigate discord between American citizens.
In cyberspace, we encounter an array of vulnerabilities threatening American and allied critical infrastructures in supply chains, potential attacks from malicious code developed by nation-states at machine-like speeds, and the seemingly unstoppable use of ransomware and cyber extortion by transnational criminal groups. The development of generative AI tools could make it impossible for our agencies to detect and patch even our known vulnerabilities before they are exploited. Surveillance authorities must be able to keep up with our adversaries.
Debate over FISA reform misinterpreted
The renewal of Section 702, a vital FISA authority since 2008, on April 19 was necessary to ensure the continuation of uninterrupted intelligence on a broad range of foreign threats to our nation, including espionage, sabotage, terrorism, and subversion. However, the debate over reforming 702 was incorrectly framed as an attempt to "rein in" the FBI due to alleged FISA "abuse" by a "politicized" bureau.
Although Section 702 has been in place for over a decade, some misleading and inaccurate claims have been made about it being a new, broad domestic surveillance capability of the FBI. The original FISA Act, implemented in 1978, was designed to monitor foreign agents on American soil under judicial oversight. Section 702, a digital instrument allowing targeted surveillance against non-US persons believed to be outside the United States in specific intelligence collection operations, was created to modernize outdated FISA laws to adapt to advancements in international communication technologies. These technologies evolve, and Section 702 must adapt as well to stay ahead of threats.
During this year's renewal process, there was significant resistance from a small group of Republican and Democratic legislators who made shocking claims that Section 702 resulted in "mass warrantless surveillance" and "backdoor spying" of Americans. Activist groups pushing these false narratives have been spreading misinformation about the statute and its role in national security for the past 15 years.
Despite such arguments, any searches or queries of US citizens' information under Section 702 are governed by strict rules and procedures designed to safeguard Americans' privacy and civil liberties. The bipartisan foundation of 702 has always been the recognition that new authorities were necessary to accommodate changes in modern communication techniques.
The Renewed Surveillance Authorization Act (RISAA) included clarified language defining an electronic communication service provider who can be compelled to assist a national security investigation. The Department of Justice emphasized to lawmakers that this "does not expand the scope of who can be targeted under" Section 702 and stated that the number of additional companies affected by the updated definition is "extremely small." Moreover, DOJ committed to providing Congress with an update on the use of the updated definition every six months.
As global digital telecommunications will never return to the simplicity of analog technologies, it is crucial to encourage Congress to create longer-lasting laws for federal surveillance of foreign threats in the digital sphere instead of temporary stopgaps with expiration dates. This is a logical update to a critical, targeted power enabling federal employees to track foreign threats while preserving the cherished American values of privacy and liberty.
Section 702 mischaracterized
As a lawyer, an intelligence officer specializing in counterterrorism and counterintelligence issues, and most importantly an American citizen concerned about my own privacy rights, I appreciate the thoughtful design of Section 702 as a specific, limited federal government power aligned with the foreign affairs responsibilities of America's elected leaders.
As someone who used to work in the public sector, I held the role of the civil liberties, privacy and transparency officer at the National Counterintelligence and Security Center. Throughout that time, I had the privilege of witnessing first-hand the dedication of federally sworn officers from 18 different agencies, including the FBI, in protecting people's privacy. I also collaborated with leaders within the intelligence community to establish "privacy by design" strategies, which helped to ensure that all counterintelligence programs and data preservation efforts were created with American civil liberties in mind.
From my personal experience, I see a significant gap between these remarkable efforts in upholding civil liberties and the outlandish criticisms from individuals who have never stepped foot in the rooms where these decisions are made. The modernization of Section 702 is far from a massive expansion of government surveillance as some people claim. Instead, it empowers counterintelligence activities that aim to actively safeguard American lives, businesses, research, and interests from foreign threats.
FISA and RISAA authorities are not a threat to Americans but rather a safeguard. Information obtained through these authorities can be used in public-private partnerships, enhancing the abilities of private entities to protect themselves from cyber attacks.
When it comes to surveillance, the original FISA law dates back to a time when traditional surveillance methods were still in use, requiring physical taps on phone lines. Given the 9/11 attacks, it was clear that FISA needed to be updated. The periodic renewal of Section 702 granted the government the ability to access data from internet and phone providers involving foreign parties.
However, the ongoing debate about a balanced approach between national security and individual privacy rights often hinges on inaccurate assumptions.
The Observed Working and Dedication of Governance Bodies
The 2023 ODNI annual statistical transparency report revealed some significant findings about national security surveillance. It was reported that the number of FBI Section 702 inquiries on US persons declined by more than half. This decrease demonstrates in concrete terms that the FBI's internal reform initiatives have been effective.
Section 702 is not only subject to oversight within the government but by each branch. Congress has the right to review it, while the attorney general must approve procedures for targeting, shrinking, and querying data. Then, these procedures are reviewed annually by the Foreign Intelligence Surveillance Court (FISC) to ensure they comply with both the FISA statute as well as the Fourth Amendment. Additionally, each individual agency within the intelligence community adheres to strict internal oversight protocols. Any violations detected by the Department of Justice or ODNI reviews are promptly reported to both FISC and Congress.
The FBI self-disclosed a few non-compliant activities, which led to crucial discussions about Section 702 in the public domain. Addressing these issues resulted in internal reforms and training programs to prevent any future mishaps. By doing so, the legal system's checks and balances are shown to be functional: they provide room for judicial review, allowing for informed discussions to improve the law.
Subscribe to CNN Opinion’s free weekly newsletter
- Subscribe to CNN Opinion’s newsletter.
- Connect with us on Twitter and FacebookA group of 44 former national security officials, who had served under both Republican and Democratic administrations and on Capitol Hill, shared my views. They agree that the United States model of disclosing occasional error, fixing those issues, and making improvements is unmatched globally.
The Section 702 authority should be made permanent before its next reauthorization in 2026. Under Article I of the US Constitution, Congress has the power to amend any federal statute. The House of Representatives does not mandate sunset provisions, potentially leaving intelligence agencies susceptible to a temporary loss of intelligence. Congress can work with a broader range of stakeholders, addressing future challenges and discovering how to protect civil liberties effectively.
Let's remember that technology evolves rapidly, and we need to adapt our laws accordingly. We can't rely solely on legal experts, legislators, and political activists to lead the process. As America evolves, so should our legislation, ensuring both robust security and steadfast civil liberty defense.
I urge Congress to embrace and refine tech-savvy approaches to keep our privacy laws in line with modern technology. The public must be included in this conversation to ensure the safeguarding of our rights and freedoms.
Yes, allow Congress to adjust and refine laws concerning digital security and privacy, guaranteeing that our defenses remain consistently robust while our American commitment to individual rights remains constant.
Read also:
- This will change in December
- Dikes withstand water masses so far - Scholz holds out the prospect of help
- Fireworks and parties ring in 2024 - turn of the year overshadowed by conflicts
- Attacks on ships in the Red Sea: shipping companies avoid important trade route
In the debate over FISA reform, some individuals falsely claim that Section 702, a digital tool for targeted surveillance against non-US persons, is a new form of mass warrantless surveillance or backdoor spying of Americans. However, any use of US citizens' information under Section 702 is strictly regulated and governed by specific rules and procedures to safeguard their privacy and civil liberties.
The Counterintelligence Privacy Officer's stance on Section 702, emphasizing that it does not intrude on Americans' privacy, is a testament to the thoughtful design of this specific federal government power. The law aligns with the foreign affairs responsibilities of America's elected leaders, aiming to protect American lives, businesses, research, and interests from foreign threats.
Source: edition.cnn.com
