JUST IN: Section 702 Must Get Reauthorized, NSA Chief Says
Defense Dept. photo
What the intelligence community refers to as one of the “crown jewels” of American spying tools is up for renewal later this year, and ensuring Congress reauthorizes Section 702 of the Foreign Intelligence Surveillance Act is vital to protecting the nation, the director of the National Security Agency said Aug. 10.
Introduced in 2008, Section 702 “permits the government to conduct targeted surveillance of foreign persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information,” an Office of the Director of National Intelligence fact sheet said. Fifty-nine percent of the president’s daily briefing materials are from Section 702-related queries, according to NSA general counsel April Doss.
Army Gen. Paul Nakasone, dual-hatted as the NSA director and the commander of U.S. Cyber Command, said Section 702 is “perhaps our most important authority that we utilize day in and day out.”
“It provides us an agility to do so much of what we need to do to provide insights to policymakers and warning to our military commanders,” Nakasone said during an event hosted by the Center for Strategic and International Studies. “702 saves lives and protects the homeland.”
For example, Section 702 has allowed the U.S. intelligence community to gather information “on Chinese precursor chemicals that are being utilized to synthesize into fentanyl,” he said. “It allows us to be able to block some of the international shipments of these chemicals into the United States.”
In 2021, during the ransomware attacks on the Colonial Pipeline system, Section 702 queries played a critical role “for us to understand how we need to react and be able to utilize a series of actions” in response to the hack, he added.
However, criticism of Section 702 has mounted, and since it was originally signed into law the authority has been renewed — most recently in 2018 — with increasingly “declining majorities in Congress,” said Glenn Gerstell, a senior adviser at the Center for Strategic and International Studies and former NSA general counsel.
In July, the President’s Intelligence Advisory Board released a review of Section 702, which acknowledged the FBI had inappropriately utilized the authority in the past and offered 13 recommendations “to improve compliance and oversight.”
During a House Judiciary Subcommittee on Crime and Federal Government Surveillance hearing in April, members of both parties raised concerns about Section 702 being used as a “backdoor” by the FBI to gather information on American citizens.
While Section 702 authorizes surveillance of foreign nationals outside the United States, often targets are in communication with American citizens, whose information is caught up in the collection process. During the hearing, members and witnesses said that the FBI had made some 3.4 million queries of Americans’ communications caught up in 702 surveillance in 2021.
Sharon Bradford Franklin, chair of the Privacy and Civil Liberties Oversight Board, said at the hearing, “There's been a lot of public attention to FBI’s violations of the existing query rules. Importantly, the FBI has recently implemented several reforms designed to improve compliance, but I do not believe that these changes are sufficient to address the privacy threats.”
During the CSIS discussion, both Nakasone and Doss emphasized the NSA’s “culture of compliance” regarding Section 702.
“It's not just national security or civil liberties and privacy, it's national security and civil liberties and privacy,” Nakasone said. “That is a culture at the National Security Agency, that's a culture in our intelligence community that is so important. It’s an ‘and’ statement.”
The NSA has also “become much more transparent,” he said. “This authority is among the most publicized authorities that we have across the world, and I think that's an important piece.”
Doss said: “You can see the semi-annual and the annual reports that are made to Congress and that are published every year, every half year, describing compliance successes and failures. And so, what NSA certainly has done, what the government has done, is really lean forward in this rather extraordinary way to show our homework, to show what we're doing to be entrusted with this authority, how we're managing it.”
In short, Nakasone said it’s “hard to imagine anything right now that's more important than being able to ensure that 702 gets reauthorized.”
“There is an important role in 702 for all of the intelligence community members,” including the FBI, he said. “The FBI has, obviously, the authorities and the focus inside the United States. Being able to provide intelligence that allows them to do their counterintelligence mission, that allows them to be able to address cybersecurity issues, is essential for us.”
The President’s Intelligence Advisory Board said in its review of Section 702 that adopting its recommendations “and outlining a revitalized system to Congress and the public should restore much-needed faith in these authorities and enable their reauthorization.
“The cost of failure is real,” the review said. “If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time … jettisoning Section 702 over compliance errors made in its first 15 years would be a tremendous mistake.”