Lawmakers Will Need to Own the Consequences of Letting Section 702 Lapse

Audio Brief

A short, spoken-word summary from CSIS’s Emily Harding on her commentary, “Lawmakers Will Need to Own the Consequences of Letting Section 702 Lapse.”

Audio file

Five years from now, a network of Chinese spies will be uncovered in Ohio. The story will hit the press like a bombshell, but the damage will have already been done. The U.S. aerospace company that found the surveillance equipment on its networks will estimate over a billion dollars in losses, thanks to the theft of intellectual property (IP). Other companies in high-end manufacturing will report similar exposures. Layoffs will be expected, with politicians demanding answers. How might something like this happen?

Right now, lawmakers are on the brink of intentionally blinding intelligence agencies to critical information about how such spy rings operate by letting Section 702 of the Foreign Intelligence Surveillance Act expire.

Congress needs to act quickly to protect the nation from such espionage and a host of other similar threats. It should pass a long-term renewal of the program, drawing on the solid reform option put forth by a bipartisan group in the Senate and the bill passed by the House Intelligence Committee on December 7. If extra time is necessary to get a bill done, Congress should extend the program until April to allow time for detailed negotiations and legislative procedure, as currently reflected in the conference version of the must-pass annual defense bill. Importantly, Congress cannot allow a vocal few to hijack the conversation by misrepresenting how the program works and wildly exaggerating the threat to Americans’ civil liberties.  

Section 702 was first enacted in 2008, in the height of the global war on terror, to allow the National Security Agency, Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), and National Counterterrorism Center to collect communications between foreigners overseas. These four organizations can require electronic communications service providers to hand over communications to or from a specific phone number or email address as long as the sender and recipient are reasonably believed to be foreigners outside the United States. Although the original intent of Section 702 was to provide critical insights into terrorist plots, in recent years it has allowed the U.S. intelligence community to stop international criminal groups, Russian cyberattacks, Chinese spying, and fentanyl trafficking.

For years, presidents from both parties and the courts have agreed that Section 702 is legal, appropriate, and necessary to protect Americans. Indeed, Congress renewed the law with bipartisan support twice, in 2013 and 2018. When then president Donald Trump signed the reauthorization bill into law in 2018, he said he would have preferred to make 702 permanent.

Members of Congress who serve on the intelligence committees and former intelligence professionals such as the author have seen firsthand the benefits of Section 702. In the author’s experience at the CIA and on the Senate Intelligence Committee, collection from Section 702 authorities has disrupted terrorist plots. It has warned oblivious victims of cyberattacks and leaders targeted by foreign intelligence services. But many of those wins are documented only in the classified space, leaving those with first-hand knowledge little option but to say, “trust us, this works.”

The pro-renewal group also has blind spots, however. This group largely trusts colleagues in the intelligence community to follow the rules, making it more likely for people to see mistakes as anomalies rather than a systemic problem—and clearly there are problems. For example, it is well documented that FBI at times has broken its own rules. Some screwups were honest mistakes, such as software settings that included searches of 702 databases by default. A tiny handful involved an FBI agent breaking the rules, which would happen in any large organization. Those incidences were identified and handled, and the FBI has created new rules to prevent abuse. For example, now an agent or supervisor must explicitly “opt in” to searching Section 702 databases. They also must document their justification for the search, which must include a “specific factual basis,” such as a credible tip or documented lead. The Senate version of a Section 702 renewal bill, led by Senators Mark Warner (D-VA), Marco Rubio (R-FL), and Lindsey Graham (R-SC), would put in place other well-calibrated reforms, such as attorney general approval of sensitive queries and new reporting requirements for FBI to make intensive oversight easier.   

Those opposed to Section 702 seem willfully blind to the benefits of the program and see only risk to Americans’ civil liberties. They contend that they are stopping government overreach by canceling the program. In this view, FBI stumbling across a U.S. person’s email is too great a risk, even if that email is a one-in-a-million foreign communication relevant to national security. 

Indeed, if Section 702 gets canceled, civil liberties will be marginally more protected, in the same way that throwing one’s phone in a river will prevent spam calls. That is a paltry reward in exchange for a huge loss. If lawmakers cancel Section 702, the U.S. government would be hanging up the tip line, throwing out the mail, and giving actors such as Beijing, Moscow, Hamas, and the Islamic State freedom to operate. If in five years a hypothetical scenario such as the Ohio IP theft above comes to pass, lawmakers will need to own their part in it.

Emily Harding is the director of the Intelligence, National Security, and Technology Program and deputy director of the International Security Program at the Center for Strategic and International Studies in Washington, D.C.

Image
Emily Harding
Director, Intelligence, National Security, and Technology Program and Deputy Director, International Security Program