Witnesses at House Judiciary Section 702 Hearing Will Back Reauthorization, Transparency
With Section 702 of the Foreign Intelligence Surveillance Act due to expire by the end of the year, the House Judiciary Committee Wednesday will hear from witnesses that the intelligence-gathering program is valuable and needed, though transparency needs to be strengthened. Section 702 has been criticized by privacy advocates who say the program incidentally collects U.S. persons' communications even though it's supposed to target only foreign suspects overseas. The first part of the hearing is closed to the public; the second panel is open.
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Saul Ewing attorney April Doss, who worked 13 years for the NSA, plans to testify that Section 702 authority "strikes an appropriate balance between the government's need for foreign intelligence information and the privacy impacts on individuals" including those whose incidental communications are collected. She says Section 702 collects targeted -- not bulk -- information, showing that care is taken with the data.
"Because of the tailored, documented, and carefully overseen manner in which the front-end collection is carried out, it is neither unlawful nor inappropriate for intelligence analysts to query the collected information using U.S. person identifiers where there is a legitimate basis to do so," Doss says. She discounts criticism that 702 enables "back door searches" of U.S. persons, citing a July 2014 report from the Privacy and Civil Liberties Oversight Board that said use of query terms relating to U.S. persons is "tightly constrained" at the NSA and CIA.
Elizabeth Goitein, co-director-liberty and national security program at the Brennan Center for Justice at New York University School of Law, plans to say there has been little evidence of international abuse or misuse of Section 702, but the executive branch is taking advantage of the statute. Rather than just collecting the communications of suspected terrorists or foreign powers overseas, the U.S. government is scanning and acquiring "hundreds of millions" of international communications that flow in and out of the U.S. via the internet backbone, she says.
"This surveillance inevitably pulls in massive amounts of Americans' calls and e-mails," Goitein will say. She adds there has been "mission creep" with the statute, which is now a source of warrantless access to Americans' information. She plans to say this could lead to risks of mishandling or abusing data and data theft, the chilling of free expression and communication since Americans know intelligence agencies are collecting large amounts of their data, economic consequences for the U.S. technology industry and national security harms. Goitein says information is needed about 702 -- including how many Americans' communications have been collected under the program -- to determine its effectiveness and impact on people's privacy. Ten House Judiciary lawmakers have asked for such information (see 1612160040).
Adam Klein, senior fellow for the Center for a New American Security, plans to testify that 702 is a "vital intelligence tool" and oversight was strengthened through the USA Freedom Act and the PCLOB report recommendations. He says the section "should be reauthorized with its current substantive authorities intact" with changes to enhance transparency and oversight. He plans to say PCLOB's future is "inextricably" tied to the program's future and the independent board needs to be saved and strengthened, too. The five-member board has three vacant seats and several lawmakers have urged President Donald Trump to make nominations (see 1612270051 and 1701110029).
Klein's recommendations include increasing effectiveness of the board's oversight. He will recommend the intelligence community be encouraged "to seek a statistically valid, feasible methodology for estimating the volume of incidental collection" of U.S. persons under 702. If that doesn't work, the National Academy of Sciences should try to create a viable approach, he will add. He will testify that the FBI needs to explain better "why it needs to retain the ability to query databases containing Section 702 information of U.S. persons."
U.S. Naval Academy assistant professor Jeff Kosseff, a cybersecurity expert, says the program "is substantially different from the massive dragnet operation portrayed" in the media. He calls the program "effective," "subject to rigorous oversight" and complying with the Fourth Amendment, though some aspects "raise difficult and close questions." He will say "the important role that Section 702 plays in promoting national security outweighs the intrusions on individual privacy interests." He will say more transparency about the program is important and note the importance of PCLOB in overseeing it.