An important section of American law governing intelligence collection on foreigners outside the United States — known as Section 702 — is set to expire at the end of December. The Congress should reauthorize it.
In 1978, after congressional hearings exposed that the government had been wiretapping American citizens without warrants on the grounds that they were threats to national security, the Congress passed the Foreign Intelligence Surveillance Act. That act established a special court where judges reviewed evidence in secret that suggested a person in the U.S. was an agent of a foreign power. Then the judge could issue a warrant for a wiretap.
In the aftermath of 9/11, the Bush administration pushed the limits of its authority to conduct surveillance without warrants, which, when it became public in 2005, led to over two years of oversight hearings and the modernization of our intelligence laws, including the addition of Section 702, relating to foreigners outside the U.S. using communications systems inside America.
The problem was that the law as written in 1978 was technology-specific. In 1978, most local phone calls were made on wires. Telephones were attached to a wall with a cord. At the time, almost all long-distance and international calls were through satellites or over the air. The 1978 law allowed intelligence agencies to collect pretty much anything traveling through the air but required a warrant to touch a wire in the U.S. By 2005, the technology had completely reversed. Almost all long-distance communications were on the equivalent of wires, and, with the advent of cell phones, the bulk of local calls were over the air. The law had not kept pace with technology changes.
Even more important, the internet and email weren’t even words in 1978. Innovative American internet service providers had become the best in the world at reliable, largely secure, and low-cost communications. And our adversaries were using email to communicate.
Here was the irony: terrorists or foreign governments who used foreign communications systems were targets of U.S. intelligence collection. But if they used American companies, the U.S. government needed a warrant to touch a wire or computer system in the U.S. — even though the terrorists or foreign powers weren’t in the United States and never had been.
In 2008, with a broad bipartisan vote, the Congress updated the laws to extend the protection of the Fourth Amendment to Americans wherever they are in the world, and to make the law technology neutral. It has been reauthorized twice since.
The modernization included a new mechanism, Section 702, that allowed an annual plan for intelligence collection to be approved by the Foreign Intelligence Surveillance Court for collection of information on non-U.S. persons outside the United States who are using communications devices in America.
There are times when non-U.S. persons outside of America are communicating with people inside America, including U.S. Citizens. The law specifically prohibited using the statute to circumvent getting a warrant on people in the U.S. or to indirectly collect information on Americans who might be communicating with people overseas. It was a reasonable solution that protected American civil liberties while also protecting our national security.
Unfortunately, when implementing this law, one of the agencies with access to the data collected — the FBI — failed to put training, oversight and access constraints in place to discourage and detect improper use of the database. They were sloppy and, arguably, in a few cases, malevolent. There have been numerous instances of FBI queries on American citizens that were not allowed by the law. The FBI’s conduct undermined public confidence and has jeopardized reauthorization of the statute.
If the Department of Justice knows who in the FBI intentionally and improperly accessed these files, those people shouldn’t be on the government payroll anymore. But the information properly gathered on non-U.S. citizens who are not in the U.S. through Section 702 is too important for our security to lose. Several planned attacks on the U.S. have been averted using information gathered in this way, including a 2009 attempted New York subway bombing, a 2010 planned vehicle bombing at a Portland Christmas tree lighting, and numerous cyber-attacks against critical infrastructure.
There are several restrictions that can be put in place to ensure that the FBI complies with the law, including limiting the kinds of queries they are allowed to do, requiring more training and certification, adding software controls to the database, and additional oversight and control by the Director of National Intelligence.
The Congress is right to be concerned about proper implementation of Section 702 of the Foreign Intelligence Surveillance Act. Restrictions on the FBI, regular audits, and effective oversight by the Director of National Intelligence, the courts and the relevant congressional committees is the right way to go.
We can’t lose the valuable collection that has helped to keep Americans safe. With new constraints in place, Section 702 of the act needs to be reauthorized before the end of the year.
Heather Wilson is president of the University of Texas at El Paso. She is a former secretary of the Air Force and served on the House Permanent Select Committee on Intelligence in the U.S. Congress.