By Katie Bo Williams, The Hill
The nation’s top law enforcement leader and top spy on Monday urged Senate and House leadership to permanently renew a widely used but controversial U.S. surveillance law scheduled to sunset at the end of the year.
“Reauthorizing this critical authority is the top legislative priority of the Department of Justice and the Intelligence Community,” Attorney General Jeff Sessions and National Intelligence Director Dan Coats wrote in a Sept. 7 letter to both Republican and Democratic leaders. (Editor’s Note: See letter below.)
The law — known as Section 702 of a 2008 package of amendments to the Foreign Intelligence Surveillance Act (FISA) — is aimed at collecting data on foreign spies, terrorists and other targets.
But Americans’ information can be “incidentally” caught up in the collection, and intelligence officials are allowed to search through and use that data without a warrant.
(Director of National Intelligence Dan Coats explained why he believes section 702 of the FISA Amendments Act, the law that allows U.S. intelligence services to monitor foreign nationals under some circumstances, is important, on June 7 at the Capitol. (Courtesy of the Washington Post and YouTube. Posted on Jun 7, 2017)
Civil liberties advocates have long pushed for Congress to close the so-called “backdoor search loophole.”
That position has recently gained more traction in Congress, after several years of disappointment for reform advocates.
House lawmakers in 2016 voted down language that would have closed the “loophole,” while identical provisions tacked on to an annual funding bill sailed through the House in 2015 and 2014, but were stripped out before the bill reached then-President Obama’s desk.
The Trump administration — including Coats — has been pushing for Section 702 to become permanent in its current form for months.
Homeland Security Advisor Tom Bossert has pushed back on the characterization of the law as permitting “backdoor” targeting of Americans.
“National security officials may use search terms or identifiers associated with Americans, such as an email address, to query the information lawfully acquired using Section 702 authority,” he wrote in a June op-ed in The New York Times.
“But this does not entail the collection or search of any new information, and the practice has been upheld by the FISA court and all other federal courts that have considered this issue,” he continued.
“Imposing a warrant requirement to conduct such data queries, as some in Congress have proposed, would be legally unnecessary and a step toward re-erecting pre-9/11 barriers to our ability to identify foreign terrorists and their contacts.”
Permanent reauthorization has some key advocates on the Hill — such as Sen. Tom Cotton (R-Ark.) — but there is also a powerful bipartisan group of lawmakers who believe the law needs key reforms.
Lawmakers have expressed concern about the number of Americans swept up in the dragnet — a number the ODNI says is infeasible to produce because it would divert critical resources and endanger privacy by asking trained analysts to sift through U.S. people’s data.
That, combined with the controversy over “unmasking” — a process by which officials can request that the anonymized names of U.S. persons caught up in surveillance be identified for national security purposes — has endangered a clean reauthorization of the law.
Rep. Darrell Issa (R-Calif.), a member of the House Judiciary Committee, which is currently negotiating a deal, told The Hill on Friday that closing the backdoor loophole “has to be” part of any reform package.
Rep. Trey Gowdy (R-S.C.), another member of the committee, said in July that a clean reauthorization was “deader than dead.”
Sessions and Coats in their letter insisted that the privacy of American persons is scrupulously protected under FISA by so-called minimization procedures that are intended to limit the collection and retention of unredacted information on U.S. citizens and foreigners on U.S soil.
(National Intelligence Director Daniel Coats, Acting FBI Director Andrew McCabe, NSA Director Adm. Michael Rogers, and Deputy Attorney General Rod Rosenstein all testify to intelligence committee on FISA. Courtesy of ABC News and YouTube. Streamed live on Jun 7, 2017)
“The law requires the Intelligence Community to follow court approved targeting and minimization procedures designed to ensure compliance with the law’s targeting restrictions and the requirements of the Fourth Amendment,” they wrote.
“The procedures are designed to protect the privacy of U.S. persons whose nonpublic information may be incidentally acquired.”
Letter by Attorney General Sessions and Director of National Intelligence Coats Urging Congress to Reauthorize Title VII of the Foreign Intelligence Surveillance Act
The Honorable Paul Ryan Speaker
U.S. House of Representatives
Washington, DC 20515
The Honorable Mitch McConnell Majority Leader
United States Senate
Washington, DC 20510
The Honorable Nancy Pelosi Minority Leader
U.S. House of Representatives
Washington, DC 20515
The Honorable Charles E. Schumer Minority Leader
United States Senate
Washington, DC 20510
Dear Speaker Ryan and Leaders McConnell, Pelosi and Schumer:
We are writing to urge that the Congress promptly reauthorize, in clean and permanent form, Title VII of the Foreign Intelligence Surveillance Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA), which is set to sunset at the end of this year.
Title VII of FISA allows the Intelligence Community, under a robust regime of oversight by all three branches of Government, to collect vital information about international terrorists, cyber actors, individuals and entities engaged in the proliferation of weapons of mass destruction and other important foreign intelligence targets located outside the United States.
Reauthorizing this critical authority is the top legislative priority of the Department of Justice and the Intelligence Community.
As publicly reported by the Privacy and Civil Liberties Oversight Board, information collected under one particular section of FAA, Section 702, produces significant foreign intelligence that is vital to protect the nation against international terrorism and other threats.
Section 702 permits the Attorney General and the Director of National Intelligence, under procedures approved by the Foreign Intelligence Surveillance Court, to authorize the acquisition of foreign intelligence information by targeting non-U.S. persons located outside the United States when such persons possess or are likely to communicate foreign intelligence information.
At the same time, Section 702 provides a comprehensive regime of oversight by all three branches of Government to protect the privacy and civil liberties of U.S. persons.
Section 702 may not be used to intentionally target a U.S. person located anywhere in the world, nor may the law be used to intentionally target any person, regardless of nationality, who is known to be located in the United States.
The law requires the Intelligence Community to follow court approved targeting and minimization procedures designed to ensure compliance with the law’s targeting restrictions and the requirements of the Fourth Amendment.
The procedures are designed to protect the privacy of U.S. persons whose nonpublic information may be incidentally acquired.
The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of Section 702 activities and Title VII requires us to report to Congress on implementation and compliance twice a year.
In addition, as demonstrated in numerous declassified court opinions and other materials, the Foreign Intelligence Surveillance Court exercises rigorous independent oversight of activities conducted pursuant to Section 702 to ensure that incidents of non-compliance are addressed through appropriate remedial action.
As you are aware, we have conducted briefings outlining the utility and implementation of Section 702 for both Members and staff this year, and will continue to do so over the course of the next few months.
We look forward to working with you to ensure the speedy enactment of legislation reauthorizing Title VII, without amendment beyond removing the sunset provision, to avoid any interruption in our use of these authorities to protect the American people.
Jefferson B. Session III
Daniel R. Coats
Director of National Intelligence
The Honorable Devin Nunes, Chairman, Permanent Select Committee on Intelligence
The Honorable Adam B. Schiff, Ranking Member, Permanent Select Committee on Intelligence
The Honorable Richard Burr, Chairman, Select Committee on Intelligence
The Honorable Mark Warner, Vice Chairman, Select Committee on Intelligence The Honorable Bob Goodlatte, Chairman, Judiciary Committee
The Honorable John Conyers, Jr., Ranking Member, Judiciary Committee
The Honorable Chuck Grassley, Chairman , Committee on the Judiciary
The Honorable Dianne Feinstein, Ranking Member, Committee on the Judiciary