The debate over reform and reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a contentious one between champions of civil liberties and those of the intelligence community. Op-eds, podcasts, and blogs are being volleyed by both sides like projectiles in a furious medieval battle.
Defenders of the status quo insist that a “clean” reauthorization of Section 702 is vital to protect the homeland from foreign threats, especially after the horror that befell Israel. Civil liberties groups complain that this authority, designed by Congress to enable the surveillance of foreigners on foreign soil, is routinely used by the FBI to access Americans’ personal data without a warrant – often for purely domestic criminal investigations.
Though each side of this debate has deep bipartisan roots, the debate itself is as polarized as Washington politics.
It is refreshing, then, to read a piece by David Aaron in Just Security, who had day-to-day experience in FISA operations in several senior legal positions at the Department of Justice’s National Security Division. Aaron doesn’t dig in for one side or another but makes a good faith effort to try to find common ground between the need to protect national security and the need to live by the U.S. Constitution.
First, Aaron asserts, it is “imperative to reauthorize Section 702” because it is a “fast and efficient way to obtain important national security information in a manner that complies with the Constitution.” We disagree with that last clause when it comes to warrantless examination of Americans’ data. But civil libertarians should recognize that expiration of Section 702 entails the risk that the FBI and intelligence community could resume warrantless surveillance outside of any legal authority, which they have done in the past.
To his credit, Aaron recognizes the growing practice of “reverse targeting” or routine checks of U.S. person information of American data incidentally swept up by Section 702. He writes: “This all happened as storage capacity and search capability continued their exponential expansion.”
Aaron then agrees that the time has come for a warrant requirement when the government seeks to examine Americans’ data derived from Section 702. He writes:
“It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies’ commitment to protecting Americans’ rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.” [i]
Aaron notes that warrants take time and that FISA search warrants can be onerous to draft. He writes that every FISA application must be approved by a senior official in the Justice Department, up to the Attorney General, and must be certified by the director of the FBI or the head of an intelligence agency. Keeping a senior official in the loop is good for quality control for warrants because “no one wants to bring a substandard or under-investigated application to a high-level official.”
Such criminal warrants would be much more likely to be unsealed, allowing criminal defendants and their attorneys to scrutinize the government’s affidavits and warrants in court.
On the Hill, reformers are also hearing constructive ideas from some in the government on how federal agencies might continue to conduct “defensive” searches to protect possible victims of criminal or state-sponsored cyberattacks without violating the Fourth Amendment. Proposals range from notice to the targeted company or individual, to a whitelist of those who agree in advance to such surveillance.
In the months ahead, there will be give and take in the reform of Section 702. It is heartening to see some with intelligence community backgrounds back away from their opening stance of all or nothing and recognize a need to address the deep skepticism of the American people about government surveillance.
[i] Italics added