Wrong changes to key intelligence program may put us at risk

Among the many issues Congress must deal with before the end of the year is a critical intelligence program that expires on Dec. 31. Several bills have been introduced to extend this program — Section 702 of the Foreign Intelligence Surveillance Act.

Some of these bills would limit the government’s ability to review and analyze the intelligence collected under Section 702, which would endanger our national security.

{mosads}Section 702 allows the government, with the compelled assistance of U.S. companies, to collect foreign intelligence information from phones, email accounts or other communications facilities used by people who are neither citizens nor residents of the United States and who are outside of the United States.

Because the targets of the surveillance are foreigners outside of the U.S., the Constitution doesn’t require the government to get the kind of individual warrants based on probable cause it needs for surveillance of Americans. 

Instead, under Section 702, the Foreign Intelligence Surveillance Court — a specialized court that deals with classified foreign intelligence matters — approves procedures submitted each year by the government to govern how targets of surveillance are chosen, how communications are collected and how use of those communications is restricted to protect privacy.

Particular foreign intelligence targets are then identified by intelligence agencies using these court-approved procedures. By law, Section 702 is subject to oversight by the Department of Justice, the Office of the Director of National Intelligence, the Foreign Intelligence Surveillance Court and Congress.

The independent Privacy and Civil Liberties Oversight Board exhaustively reviewed the operation of Section 702 several years ago and concluded that it was “highly valuable” for protecting our nation. It has not only led to the disruption of terrorist plots, but it provided information about cyber threats and other important national security matters — information that could not be obtained otherwise or could only be obtained with great difficulty.

But while Section 702 targets only foreigners outside the U.S., some communications of American citizens or residents are inevitably swept up. A foreign intelligence target may talk to relatives in the U.S., may purchase goods from American companies or may be plotting with confederates in this country.

Congress recognized that this type of “incidental collection” (“incidental” because the American is not the target of the surveillance) would occur, and Section 702 therefore requires that the procedures approved by the court place appropriate limits on the collection, retention and dissemination of information about Americans.

These procedures allow communications collected under Section 702 to be retained for several years and to be “queried” by intelligence agencies for foreign intelligence purposes or, in the case of the FBI, for law enforcement reasons.

For example, if someone commits a mass killing in the U.S., the FBI is allowed to query the Section 702 collection to see whether he has been in contact with foreign terrorists.

This query process is the principal target of the changes proposed by privacy advocates and some members of Congress. They want to prohibit or greatly limit the FBI from making such queries without a warrant from the Foreign Intelligence Surveillance Court, at least when the query relates to an American.

But while some restrictions on the use of information gathered under Section 702 may be appropriate, requiring a warrant for queries is a bad idea.

A consistent theme of those who have reviewed our nation’s intelligence activities over the years has been the need to break down barriers that impede information sharing. The 9/11 Commission, for example, found that intelligence agencies had information that might have led to detection of the attackers and their plot, but that that information was not appropriately shared.

Imagine the public’s reaction if we suffer another catastrophic terrorist attack and it turns out that the FBI had relevant information in its own files that it was unable to see because it did not yet have enough evidence to obtain a warrant.

Moreover, requiring a warrant for a query would create an unprecedented barrier to the FBI’s ability to carry out its mission to protect the homeland. Typically, one of the first things that the FBI will do in any criminal investigation is check its files to see if there is relevant information.

This can help direct the course of an investigation — or exonerate an innocent individual at the outset. But the standard for obtaining a warrant — probable cause to believe that a crime has been committed — is high, and is often not met until far into an investigation. A warrant requirement would thus often prevent the FBI from getting important information in a timely manner. 

Some, however, characterize this sort of query as a search for which the Constitution requires a warrant. This argument has been rejected by every court that has considered it. It defies logic to require the government to get a warrant to look at its own lawfully acquired files.

Moreover, the proposed changes would not require government agents to obtain a warrant to review and analyze the entirety of the communications collected under Section 702. It seems perverse to require a warrant if the agents want to look at a smaller subset. 

Advocates have also expressed concern that without a warrant requirement, the government could misuse Section 702 as a “back door” to conduct surveillance of Americans. But the statute specifically prohibits that: The government cannot target a foreigner when its real purpose is to target an American. There’s no indication that this prohibition has been inadequate to protect Americans from misuse of Section 702.

In short, neither logic nor law supports a warrant requirement for queries of communications lawfully collected under Section 702. Still, some limitation on the use of Section 702 is appropriate. Because Section 702 is a national security authority, the government should not be able to use it for run-of-the-mill criminal cases.

Instead of imposing dangerous limits on the government’s ability to look at information collected under Section 702, Congress should prohibit the use of that information in any criminal case that does not involve national security.

This would better balance the need to protect private communications of Americans with the need to protect our national security.

Robert Litt, former general counsel for the Office of the Director of National Intelligence, is of counsel in Morrison & Foerster’s national security and global risk and crisis management practices. He advises industry-leading organizations on sensitive national security and privacy matters, white collar investigations and government enforcement actions.