FISA reauthorization necessary to keep homeland safe, panel concludes

Recent stories in the media about the FBI wiretapping of Paul Manafort, former campaign manager for President Donald Trump and a person of interest in the FBI probe looking into Russian interference in the 2016 presidential election, have fueled interest in FISA – or Foreign Intelligence Surveillance Act, enacted in 1978.

Moderator Susan Hennessey (far left) with panelists Elisabeth Collins, Stuart J. Evans, Glenn Gerstell and Caroline Lynch at the 12th Annual Homeland Security Law Institute

Section 702 of the FISA Amendments Act of 2008 allows the National Security Agency to tap into the communications of “non-U.S. persons” outside the United States. However, FISA warrants require investigators to demonstrate to a FISA court that there is probable cause to believe the target may be acting as an unlawful foreign agent.

Many in the intelligence community want Congress to not just renew the act, which expires on Dec. 31, but to make it permanent law.

A panel of experts at the 2017 ABA Homeland Security Law Institute gathered to discuss how the act is used to keep Americans safe and if it should be renewed.

The reauthorization of Section 702 is the No. 1 priority of the intelligence community and the Department of Justice, said Stuart J. Evans, deputy assistant attorney general at the National Security Division, U.S. Department of Justice.

Glenn Gerstell, general counsel of the NSA, agrees, saying that it’s hard to overstate the importance of Section 702 authority. “It’s arguably the single most important operational statute that the intelligence agencies have,” he said. It is used by the NSA, CIA, FBI and the National Counterterrorism Center to inform us on counterterrorism, weapons of mass destruction and proliferation, protection of our troops and our cybersecurity efforts. It has strong oversight by all three branches of government and is critically important to our intelligence agencies, Gerstell said.

The act authorizes the electronic surveillance only of foreign citizens on foreign soil, Evans said. “No Americans, either here or abroad, can be targeted for surveillance.” 

That said, section 702 of the FISA does allow the NSA to listen in on American citizens caught up “incidentally” without a warrant, troubling some. Incidental collection occurs when a person is in contact with a surveillance target. If the NSA believes the information collected contains evidence of a crime, the NSA can share those communications with law enforcement or other relevant agencies.

Under one aspect of the NSA’s warrantless surveillance program, telecommunications companies like AT&T and Verizon give copies of emails that cross the international border and contain a search term that identifies foreigners overseas whom the government has targeted for surveillance; email addresses are one example. The agency calls this “upstream” collection. Until 2013, it was not publicly known that the equipment installed on network switches was systematically sifting all cross-border internet traffic and sending to the NSA messages containing such a targeted email address anywhere—not just emails to or from targets, but also between other people who talk about the targets. This practice, so-called “abouts” collection, was discovered amid the fallout from the leaks by the former intelligence contractor Edward J. Snowden.

Gerstell said it’s impossible to know exactly how many Americans are caught up in incidental collections, but estimated numbers are low and have been reported to Congress. He added that the only time an American could be caught in incidental collection is if that American is in direct contact with a foreign intelligence target.

Panelist Elisabeth Collins, board member of the Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency within the executive branch, said that after studying the law for a year, the board recommended changes to Section 702 to strengthen privacy protections and restrictions, and all of the recommendations have been implemented. 

Moderator Susan Hennessey, managing editor of the blog Lawfare and a fellow in National Security in Governance Studies at Brookings Institution, asked panelists to offer their views on the nature of the current debate in Congress on renewing FISA.

Panelist Caroline Lynch, founder and owner of Copper Hill Strategies public policy shop, said she expects possible changes in 702 related to unmasking, especially after recent events related to the Russians’ involvement in the 2016 presidential campaign.

“I don’t think either chamber will allow the authorities of 702 to expire outright. I think that lawmakers believe in its value,” Lynch said. “But I would not be surprised if, based on the time left in the legislative calendar, if on or about Dec. 29 a temporary extension lands on the president’s desk.”

As we get closer to expiration, the intelligence community must figure out what to do if reauthorization fails, Evans added, which means they’ll have to start looking at national security targets currently under surveillance and perform a kind of triage to figure out which surveillance requests may get approved by a judge for continued surveillance.

The ABA Homeland Security Law Institute was organized by the ABA Section of Administrative Law and Regulatory Practice.