FISA law has built-in privacy protections, Townsend says at ABA breakfast

Lost on many people in the ongoing debate about privacy vs. security is the fact that the FISA Amendments Act has many layers of built-in protections to safeguard Americans’ civil liberties, including strong oversight by all three branches of government, says Frances Townsend, former Homeland Security adviser to President George W. Bush.Townsend, currently president of the Counter Extremism Project, spoke about the legislation at a Jan. 12 breakfast in Washington, D.C., sponsored by the ABA Standing Committee on Law and National Security. She was joined by  Harvey Rishikof, chair of the Advisory Committee for the standing committee.

Fran Townsend, former national security adviser, discusses the FISA legislation with Harvey Rishikof, chair of the Advisory Committee of the Standing Committee on Law and National Security.

Section 702 of the FISA Amendments Act of 2008, which was approved by the House of Representatives on Jan. 11, 2018 and now goes to the Senate for consideration, 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. The only time an American could be caught in incidental collection is if that American is in direct contact with a foreign intelligence target.“One of the arguments among the ‘fear of privacy’ individuals is that somehow, we use 702 to back-door the requirements of the Fourth Amendment,” Rishikof said. “Is that a concern that you have or you’ve seen?” Rishikof asked Townsend.

She agreed that sometimes there is incidental collection of data, but rejects the idea that the FBI uses 702 to target Americans. Under the law, the FISA court must be notified within 24-48 hours if an American citizen is identified in the data. “There are lots of controls to check and prevent abuses,” Townsend said.

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.

Townsend said it may be time to step back and re-evaluate the structures and authorities of various agencies.  “You have to say, is it performing the right function, is it the right size and how do we improve it going forward? … We would do well to go back and look at some of these post-9/11 structures we put in place and ask ourselves the hard questions.”

Cyber has changed the way the intelligence community operates on every level, Townsend said, especially in the field of counter-intelligence.

“We hold precious the freedom of the press, but what we find is the very freedoms we hold precious, our enemies are using against us,” she explained. “So, when you realize the Russians are using the Black Lives Matter movement or white supremacy movement on social media to sow domestic discontent, it troubles me because I feel like we haven’t devoted the time, attention or resources that we need to deal with that.”