2012-STOA-BB-012-AFF-SaudiArabia-SUBMITTED.docx file · Web viewFISA Section 702 and the safer...

NEGATIVE: REPEAL FISA SECTION 702

NEGATIVE BRIEF: REPEAL FISA SECTION 702

By Kirstin Erickson

Resolved: The United States federal government should substantially reform its foreign policy regarding international terrorism.

FISA Section 702 is part of the Foreign Intelligence Surveillance Act which allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats, without a warrant. The affirmative case argues that because Americans’ communications may incidentally be collected as part of this surveillance, it’s a privacy and Fourth Amendment violation and therefore must be abolished.

On negative, it’s important to remember that you aren’t just debating against a plan, you’re also arguing for something. In this case, your job is to argue for FISA Section 702 and the safer world that it brings. You’ll also need to impact that idea of safety directly to America and to the judge. There’s only one disadvantage in this brief, so you’ll need to go deep with it and combine it with significance points to outweigh the affirmative harms. With the status quo, privacy violations are minimal and insignificant; with the proposed plan, the chances of future terrorist attacks are real and serious.

Negative: Repeal FISA Section 702.........................................................................................................3OPENERS..............................................................................................................................................................................3

FISA Section 702 is a vital and carefully overseen tool.......................................................................................................................3Section 702 is invaluable to America’s national security – criticisms are misguided and unfair.........................................................3Section 702 is constitutional and essential to security..........................................................................................................................3

TOPICALITY........................................................................................................................................................................4If Section 702 allows for surveillance of activity not related to terrorism, then repealing it isn’t topical............................................4

MINOR REPAIRS – Instead of repealing the entire bill, just add privacy protections.........................................................4A proposed amendment included significant privacy safeguards.........................................................................................................4Require a search warrant to get Americans’ communications..............................................................................................................4

INHERENCY.........................................................................................................................................................................4

1. Status Quo safeguards........................................................................................................................................................4Section 702 is heavily and carefully overseen......................................................................................................................................4Specifics on oversight of 702 surveillance – lots of scrutiny, supervision and rigorous oversight......................................................5

SIGNIFICANCE....................................................................................................................................................................5

702 is not being abused..........................................................................................................................................................5Section 702 does not allow the government to intentionally surveil Americans..................................................................................5Surveillance is only permitted on foreigners outside U.S. borders.......................................................................................................5Because of recent oversight and transparency, there’s no government abuse of Section 702..............................................................6

No violation of the Fourth Amendment.................................................................................................................................6Those targeted by 702 don’t have constitutional protections that require a warrant.............................................................................6Every federal court review has upheld Section 702 against constitutional challenges.........................................................................6Section 702 activities are not a fourth amendment “search”.................................................................................................................7Analogy – police officers......................................................................................................................................................................7Not collecting new data, so not a Fourth Amendment violation...........................................................................................................7

Privacy protected....................................................................................................................................................................8Many layers of built-in privacy protections..........................................................................................................................................8“Incidental collection” is fine since the data goes through minimization.............................................................................................8

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“Minimization” even further reduces the risk of abuse.........................................................................................................................9Additional privacy protections..............................................................................................................................................................9

DISADVANTAGE:.............................................................................................................................................................10

1. Increased threat of terrorism............................................................................................................................................10Link: Section 702 is extremely valuable for combating terrorism......................................................................................................10Link: 702 is “the most significant tool” in the National Security Agency’s arsenal against terrorism...............................................10Link: A complete ban on using 702 data to surveil people in the U.S. is dangerous because it blocks terrorism investigations............................................................................................................................................................................................................. 10Examples: Section 702 allowed the government to eliminate a top ISIS leader.................................................................................10More of the story of ISIS commander Hajji Iman, who was caught using 702..................................................................................11Example: Section 702 was critical in thwarting a plot to attack the New York subway system........................................................11More examples of Section 702’s effectiveness: Istanbul, Trinidad & Tobago...................................................................................11Additional support may be in classified reports..................................................................................................................................12A/T: New York Subway threat wasn’t stopped by Section 702 information......................................................................................12Brink: There is no substitute for 702. Impact: US citizens and our allies get attacked.......................................................................12Impact: Terrorism. 702 is key to fulfilling government’s job to stop terrorism..................................................................................12

Works Cited............................................................................................................................................13





OPENERSFISA Section 702 is a vital and carefully overseen tool

Jessica Schneider 2018 . (award-winning journalist and attorney) “What is Section 702 of FISA, anyway?”. January 11, 2018. CNN. https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html

Former FBI Director James Comey weighed in on the importance of Section 702 on Thursday morning, tweeting, "Thoughtful leaders on both sides of the aisle know FISA section 702 is a vital and carefully overseen tool to protect this country. This isn't about politics. Congress must reauthorize it."

Section 702 is invaluable to America’s national security – criticisms are misguided and unfair

Paul Rosenzweig, Charles Stimson and David Shedd 2016. (Rosenzweig is a Visiting Fellow at the Heritage Foundation. Stimson is a widely recognized expert in national and homeland security, a senior legal fellow at The Heritage Foundation, and an accomplished trial lawyer. Shedd is a Visiting Fellow at Davis Institute for National Security and Foreign Policy) “Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program”. May 13, 2016. The Heritage Foundation. https://www.heritage.org/defense/report/maintaining-americas-ability-collect-foreign-intelligence-the-section-702-program

Broadly speaking, the Section 702 program targets non-U.S. persons reasonably believed to be located outside the United States, in order to acquire foreign intelligence. Over the past several years, this surveillance of the online activities of foreigners has been a critical and invaluable tool for American intelligence professionals and officials. Knowledgeable officials note that more than 25 percent of all current U.S. intelligence is based on information collected under Section 702.Still, there are those who have concerns about the program. These critics believe that the program, as currently implemented, infringes on Americans’ rights. Their concern hinges on the inevitable reality that in the course of collecting information about foreign actors, the Section 702 program will also collect information about American citizens. As a result, some opponents liken the Section 702 program to the government telephony metadata program disclosed by Edward Snowden, and characterize Section 702 as an instance of government overreach. Such comparisons are misguided and unfair. The program is so vital to America’s national security that Congress should reauthorize Section 702 in its current form.

Section 702 is constitutional and essential to security

Paul Rosenzweig, Charles Stimson and David Shedd 2016. (Paul Rosenzweig is a Visiting Fellow at the Heritage Foundation; Charles Stimson is a widely recognized expert in national and homeland security, a senior legal fellow at The Heritage Foundation, and an accomplished trial lawyer; David Shedd is a Visiting Fellow at Davis Institute for National Security and Foreign Policy) “Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program”. May 13, 2016. The Heritage Foundation. https://www.heritage.org/defense/report/maintaining-americas-ability-collect-foreign-intelligence-the-section-702-program

First, Section 702 is constitutional, statutorily authorized, and carefully constructed to address a vital U.S. national security requirement: the collection of vital information relating to foreign threats.



https://www.heritage.org/defense/report/maintaining-americas-ability-collect-foreign-intelligence-the-section-702-program




https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html



TOPICALITY

If Section 702 allows for surveillance of activity not related to terrorism, then repealing it isn’t topical

Bruce Fein 2017. (served as associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and is now a partner in the firm Fein & DelValle, PLLC) “FISA section 702: Repeal or scale back”. December 20, 2017. The Washington Times. https://www.washingtontimes.com/news/2017/dec/20/fisa-section-702-repeal-or-scale-back/

The HPSCI legislation, nevertheless, would expand the targets of foreign intelligence surveillance under section 702 to include persons engaged in “malicious cyber” activities unrelated to international terrorism.

MINOR REPAIRS – Instead of repealing the entire bill, just add privacy protections

A proposed amendment included significant privacy safeguards

Louise Matsakis 2018. (staff writer at WIRED covering cybersecurity, internet law, and online culture) “CONGRESS RENEWS WARRANTLESS SURVEILLANCE—AND MAKES IT EVEN WORSE”. January 11, 2018. Wired. https://www.wired.com/story/fisa-section-702-renewal-congress/

The amendment that the House of Representatives shot down would have added significant privacy safeguards to the law, including the requirement that intelligence agents get a warrant in many cases before searching through emails and other digital communications belonging to US citizens.

Require a search warrant to get Americans’ communications

Peter Swire, Richard Clarke 2017. (Peter Swire is the Elizabeth and Tommy Holder Chair of Law and Ethics at the Georgia Tech Scheller College of Business, a Senior Counsel to Alston & Bird LLP, and Senior Fellow of the Future of Privacy Forum. Dick Clarke is CEO of Good Harbor LLC, a boutique cyber security/risk management consultancy. Clarke has served in the White House, the Pentagon, the Intelligence Community, and the State Department. He was an Assistant Secretary of State for Political Military Affairs in the first Bush administration and Deputy Assistant Secretary of State for Intelligence under President Ronald Reagan.) “Reform Section 702 to Maintain Fourth Amendment Principles”. October 19, 2017. The Lawfare Institute. https://www.lawfareblog.com/reform-section-702-maintain-fourth-amendment-principles

Our recommendation upholds the principles of the Fourth Amendment as applied to the content of communications. For law enforcement investigations, the police must get a search warrant, signed by a judge, that there is probable cause of a crime. For foreign intelligence investigations, the government must get a search warrant, signed by a judge in the Foreign Intelligence Surveillance Court (FISC), that there is probable cause that the individual is an agent of a foreign power.

INHERENCY

1. Status Quo safeguards

Section 702 is heavily and carefully overseen

U.S. Rep. Lloyd Smucker 2018. (Republican member of the U.S. House of Representatives for Pennsylvania's 16th congressional district; previously a member of the Pennsylvania State Senate, representing the 13th District from 2009 to 2016) “SMUCKER STATEMENT ON REAUTHORIZATION OF FISA SECTION 702”. January 11, 2018. https://smucker.house.gov/media/press-releases/smucker-statement-reauthorization-fisa-section-702

Section 702 has been a key instrument in U.S. counterterrorism efforts, as illustrated in the declassified story of Hajji Iman, the second-in-command of ISIS who was tracked via the use of Section 702 and removed from the battlefield. Section 702 remains one of the most heavily and carefully overseen authorities in the intelligence community, with oversight by all three branches of government.



https://smucker.house.gov/media/press-releases/smucker-statement-reauthorization-fisa-section-702

https://www.lawfareblog.com/reform-section-702-maintain-fourth-amendment-principles

https://www.wired.com/story/fisa-section-702-renewal-congress/

https://www.washingtontimes.com/news/2017/dec/20/fisa-section-702-repeal-or-scale-back/


Specifics on oversight of 702 surveillance – lots of scrutiny, supervision and rigorous oversight

Richard Fontaine 2018. (President of the Center for a New American Security; he also worked at the State Department, the National Security Council and on the staff of the Senate Foreign Relations Committee) “Commentary: Why the FISA Act Isn’t the Privacy-Stealing Monster Some Think It Is”. January 23, 2018. Fortune. http://fortune.com/2018/01/23/section-702-fisa-terrorism/

For all its national security value, Section 702 also raises legitimate civil liberties concerns, and worries about privacy-animated opponents of last week’s reauthorization. When the government surveils foreigners, Americans communicating with them can have their communications collected and stored in government databases. For this reason, 702 is subject to rigorous oversight: within the NSA and other agencies, by lawyers at the Justice Department and the Office of the Director of National Intelligence, by the Intelligence and Judiciary committees in Congress, by the independent Privacy and Civil Liberties Oversight Board, and by the Foreign Intelligence Surveillance Court, which supervises the program and must sign off on its operation each year. Collectively, these actors scrutinize every aspect of how the program operates, from initial targeting to how the data is stored, searched, and used.

SIGNIFICANCE

702 is not being abused

Section 702 does not allow the government to intentionally surveil Americans

Jessica Schneider 2018 . (award-winning journalist and attorney) “What is Section 702 of FISA, anyway?”. January 11, 2018. CNN. https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html. Brackets added.

The section specifically "allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats," as laid out in the House Intelligence Committee FAQ sheet. For example, the program allows the government to obtain the emails or phone calls, without a warrant, of a non-American ISIS member who is outside the United States and might be plotting an attack. The [House Intelligence] committee FAQ points out that Section 702 does not allow the government to target the communications of any American, even if that American is a terrorist. In a fact sheet, the Office of the Director of National Intelligence says there are strict guidelines on the use of 702, which "cannot be used to intentionally target any US citizen, or any other US person, or to intentionally target any person known to be in the United States. Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information" from a person inside the United States.

Surveillance is only permitted on foreigners outside U.S. borders


Under Section 702, the U.S. Attorney General and the Director of National Intelligence (DNI) may jointly authorize surveillance of people who are not “U.S. persons.” U.S. persons is a term of art in the intelligence community (IC) that means people who are not only American citizens but also covers permanent-resident aliens. As such, the targets of Section 702 surveillance can be neither citizens nor permanent residents of the U.S. Section 702 authorizes the government to acquire foreign intelligence by targeting non-U.S. persons “reasonably believed” to be outside U.S. borders. Taken together, these two requirements identify the fundamental domain of Section 702 surveillance: it applies to foreigners on foreign soil. It is expressly against the law to attempt collection of information from targets inside the U.S.—whether Americans or foreigners—or to deliberately target the collection of online communications of American citizens.







http://fortune.com/2018/01/23/section-702-fisa-terrorism/


Because of recent oversight and transparency, there’s no government abuse of Section 702

Jack Goldsmith, Susan Hennessey 2018. (Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Special Counsel to the Department of Defense from 2002-2003. Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.) “The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)”. January 18, 2018. The Lawfare Institute. https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law

More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups).

No violation of the Fourth Amendment

Those targeted by 702 don’t have constitutional protections that require a warrant

Jessica Schneider 2018 . (award-winning journalist and attorney) “What is Section 702 of FISA, anyway?”. January 11, 2018. CNN. https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html. Brackets added.

[Joshua] Geltzer [former senior director for counter-terrorism at the National Security Council and current executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center] emphasizes that 702 is a generalized directive from the FISA court that allows for collection from a certain foreign intelligence asset for a certain period of time, which makes it broader than a warrant. "The people targeted by 702 collection don't have constitutional protections that require a warrant anyway," Geltzer explained. But since they are using internet or phone providers with connections to the United States, investigators need some sort of authority to surveil them, which is how 702 came into play.

Every federal court review has upheld Section 702 against constitutional challenges

Chuck Grassley 2018. (republican senator for Iowa; elected to Iowa Legislature 1958; U.S. House of Representatives 1974, U.S. Senate 1980; education: M.A. 1956 Political Science, University of Northern Iowa; Ph.D. work, University of Iowa) “Grassley on Section 702 Reauthorization: "...we must make sure that those who protect us have the tools to keep us safe"”. Jan 16, 2018. https://www.grassley.senate.gov/news/news-releases/grassley-section-702-reauthorization-we-must-make-sure-those-who-protect-us-have

Every federal court to review 702 – including the 9 th Circuit – has upheld the law. The Supreme Court’s recent decision to deny review of the 9th Circuit case lets stand that court’s decision. These courts consistently determined that a warrant is not required to collect or query Section 702 information. Moreover, the independent Privacy and Civil Liberties Oversight Board reviewed the entire legal framework of the 702 program and also found it to be constitutional.



https://www.grassley.senate.gov/news/news-releases/grassley-section-702-reauthorization-we-must-make-sure-those-who-protect-us-have




https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law

https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law


Section 702 activities are not a fourth amendment “search”

U.S. House of Representatives Permanent Select Committee on Intelligence. “FISA Section 702 Debate”. https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf

When the Government looks into its own database of lawful collection using U.S. person information, it is not a Fourth Amendment “search.” The Government is not collecting any new information. Rather, the Government is simply reviewing the database of foreign communications it already has in its possession. This act is similar to police officers looking through an evidence locker to see if evidence from past crimes might help solve an open case. The police do not violate anyone’s constitutional rights because they are simply reviewing evidence already in their lawful possession, not carrying out a new search.

Analogy – police officers

U.S. House of Representatives Permanent Select Committee on Intelligence. “FISA Section 702 Debate”. https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf

Just as police officers don’t have to close their eyes to evidence of a crime they don’t expect to find when they search a house, the NSA doesn’t have to blind itself to the other side of a conversation when it monitors an overseas terrorist.

Not collecting new data, so not a Fourth Amendment violation


Another complaint about the Section 702 program is that U.S. person data is retained—at least partially—at all. Under current rules, when the U.S. government targets someone abroad, it is not required to discard the incidentally collected communications of U.S. persons—if authorities conclude that those conversations constitute foreign intelligence.In that event, even incidental conversations by or about U.S. persons may be retained. And the threshold for querying a U.S. person within the data collected is relatively low. To affirmatively query the data collected about a U.S. person, all that is needed is a determination that the search is reasonably likely to return foreign intelligence information. “Reasonably likely” is an especially easy standard to meet. It does not, for example, require any particularized suspicion that the U.S. person who is subject of the inquiry is engaged in any wrongdoing himself.For that reason, a Presidential Review Board, as well a few Members of Congress, believe that Section 702 collection on Americans goes too far. The program, they argue, is permissible and lawful without individual case supervision or a warrant requirement precisely because it targets non-Americans. So they contend that when the communications of U.S. persons are queried, probable cause and warrant requirements should apply. Any loophole that allows that particular querying should be closed because the government should not be able to obtain “back door” evidence against U.S. persons that it could otherwise only obtain with judicial approval.But there is no “back door” here—a query does not collect any additional data. The FISC specifically holds that the 702 collection is constitutional and entirely consistent with the Fourth Amendment’s protections. The court found that “the querying provisions of the FBI Minimization Procedures strike a reasonable balance between the privacy interests of U.S. persons and persons in the United States, on the one hand, and the government’s national security interests, on the other.” Even the fact that the “FBI’s use of those provisions to conduct queries designed to return evidence of crimes unrelated to foreign intelligence” did “not preclude the Court from concluding that taken together, the targeting and minimization procedures submitted with the 2015 Certifications are consistent with the requirements of the Fourth Amendment.”





https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf

https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf


Privacy protected

Many layers of built-in privacy protections

American Bar Association 2018. “FISA law has built-in privacy protections, Townsend says at ABA breakfast”. Jan 12, 2018. American Bar Association. [The American Bar Association is one of the world’s largest voluntary professional organizations, with over 400,000 members and more than 3,500 entities. Founded in 1878, the ABA is committed to supporting the legal profession with practical resources for legal professionals while improving the administration of justice, accrediting law schools, establishing model ethical codes, and more.] https://www.americanbar.org/news/abanews/aba-news-archives/2018/01/fisa_law_has_built-i.html

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.

“Incidental collection” is fine since the data goes through minimization

Gregory Korte 2017. (White House correspondent for USA TODAY; won the Gerald R. Ford Foundation Prize for Distinguished Reporting on the Presidency in 2017) “What is 'unmasking?' How intelligence agencies treat U.S. citizens”. April 4, 2017. USA TODAY. https://www.usatoday.com/story/news/politics/2017/04/04/what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368/

When U.S. spy agencies eavesdrop on terrorists or forefign agents, they often come across information about U.S. citizens who are not the target of their investigation. This "incidental collection" is not illegal or improper, but specially trained intelligence officers are required to go through an established procedure to protect the privacy of U.S. persons, known as "minimization." (U.S. persons are defined as U.S. citizens and permanent residents, no matter where they are in the world.) Identifying information about that person will generally be excluded in intelligence reports that are distributed throughout the intelligence community, including those that go to the White House. Instead, the reports will refer only to "U.S. Person One," "U.S. Person Two," etc.



https://www.usatoday.com/story/news/politics/2017/04/04/what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368/

https://www.usatoday.com/story/news/politics/2017/04/04/what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368/

https://www.americanbar.org/news/abanews/aba-news-archives/2018/01/fisa_law_has_built-i.html


“Minimization” even further reduces the risk of abuse


This prospect of collecting American data led Congress to include certain requirements that would reduce, though not entirely eliminate, the possibility that the data could be misused. Under the FAA, when information is collected about an American, whether incidentally as part of an authorized investigation, or inadvertently as the result of a mistake, the government is required to apply FISC-approved “minimization” procedures to determine whether such information may be retained or disseminated. When lawyers and intelligence professionals use the word “minimization” in the context of intelligence collection, it means that any information inadvertently collected on a U.S. person is retained (if at all) only for a limited time, and that information about Americans is used and revealed and further disseminated only under narrowly defined circumstances. Minimization requirements may also mean deleting the information entirely. As with the targeting procedures, these minimization procedures are approved by the FISC—but again, the approval is for the entire system of minimization, not for each individual case. So, for example, under these minimization rules, the NSA, CIA, and FBI are subject to certain limitations in how they are permitted to query and analyze the data they have lawfully collected. For example, they must demonstrate a reasonable likelihood that targeting a particular item in the information collected will result in the development of foreign intelligence. In other words, the rules limit when a U.S. person can be targeted for examination, and how long data about an American can be retained before it is deleted.

Additional privacy protections

Dutch Ruppersberger 2018. (serving his eighth term in the United States House of Representatives for the citizens of Maryland’s 2nd District) “RUPPERSBERGER ISSUES STATEMENT ON REAUTHORIZATION OF SECTION 702 OF FOREIGN INTELLIGENCE SURVEILLANCE ACT”. Jan 11, 2018. https://ruppersberger.house.gov/newsroom/press-releases/ruppersberger-issues-statement-on-reauthorization-of-section-702-of-foreign

Today, I voted in favor of the bipartisan FISA Amendments Reauthorization Act of 2017 because it makes critical reforms to the Foreign Intelligence Surveillance Act (FISA), especially Section 702, that will protect both American lives – especially our troops abroad – and our civil liberties. Section 702 is an important tool used to collect communications on foreign bad guys overseas. It can only be used to target non-Americans located outside our borders. It is not – and cannot – be used to intentionally target Americans, ever, either within the United States or abroad. Anyone claiming that Section 702 is broadly used to spy on American citizens simply does not understand the nature of this program, its limited scope, or how it is executed by the patriots that make up our intelligence and law enforcement communities. The courts have affirmed this program’s current authorization and operation – including the procedure for when a warrant is required – are legal and consistent with the Fourth Amendment. Just this week, the Supreme Court of the United States confirmed this when it rejected a Fourth Amendment challenge to Section 702. Congress has voted several times with bipartisan majorities to reauthorize it. While this program may already be one of the most heavily overseen programs we have, this bill includes several new privacy safeguards, including specific query procedures—separate from existing minimization procedures—that must be annually approved by the Foreign Intelligence Surveillance Court (FISC). It also, for example, ends the collection of communications “about” a target (again, never an American) as opposed to communications “to” and “from” a target until the government develops new procedures, gains FISC approval for them, and briefs Congress.



https://ruppersberger.house.gov/newsroom/press-releases/ruppersberger-issues-statement-on-reauthorization-of-section-702-of-foreign

https://ruppersberger.house.gov/newsroom/press-releases/ruppersberger-issues-statement-on-reauthorization-of-section-702-of-foreign




DISADVANTAGE:

1. Increased threat of terrorism

Link: Section 702 is extremely valuable for combating terrorism


Section 702 is billed as one of the most important legal authorities to stop terrorist attacks. FBI Director Christopher Wray said this week that "it is unbelievably valuable to the FBI because it gives us the agility that we need to stay ahead of today's rapidly changing threats."

Link: 702 is “the most significant tool” in the National Security Agency’s arsenal against terrorism

Chuck Grassley 2018. (republican senator for Iowa; elected to Iowa Legislature 1958; U.S. House of Representatives 1974, U.S. Senate 1980; education: M.A. 1956 Political Science, University of Northern Iowa; Ph.D. work, University of Iowa) “Grassley on Section 702 Reauthorization: "...we must make sure that those who protect us have the tools to keep us safe"”. Jan 16, 2018. https://www.grassley.senate.gov/news/news-releases/grassley-section-702-reauthorization-we-must-make-sure-those-who-protect-us-have

The National Security Agency has called the 702 program “the most significant tool” in the NSA arsenal for the detection and disruption of terrorist threats. The NSA Director has said publicly that “there is no alternative way” to replicate 702 collection. Some estimate that over 25% of all current U.S. intelligence is based on 702 collection.

Link: A complete ban on using 702 data to surveil people in the U.S. is dangerous because it blocks terrorism investigations

Richard Fontaine 2018. (President of the Center for a New American Security; he also worked at the State Department, the National Security Council and on the staff of the Senate Foreign Relations Committee) “Commentary: Why the FISA Act Isn’t the Privacy-Stealing Monster Some Think It Is”. January 23, 2018. Fortune. http://fortune.com/2018/01/23/section-702-fisa-terrorism/

The bill signed into law last week wisely adds further protections, imposing new limits on the FBI’s ability to search 702 data in criminal investigations and on the Justice Department’s ability to use that data to prosecute domestic crimes. Privacy advocates on both the left and right sought more drastic changes, including a complete ban on searching 702 data to find information about people in the United States. Concerns about that practice are understandable, and the bill takes modest steps to address them. A complete ban, however, would have risked re-erecting the “wall” between foreign intelligence and criminal investigations that contributed to the government’s failure to detect the 9/11 plot. If someone under FBI investigation is communicating with terrorists overseas, the FBI should be aware of the connection.

Examples: Section 702 allowed the government to eliminate a top ISIS leader


The House Intelligence Committee credits the authority with allowing the government to track, find and eliminate a top ISIS leader, Haji Iman, a process that unfolded over a two-year span in which the communications of Iman's close associates were collected.





http://fortune.com/2018/01/23/section-702-fisa-terrorism/






More of the story of ISIS commander Hajji Iman, who was caught using 702


Before rising through the ranks to become, at one point, the second-in-command of ISIS, Hajji Iman was a high school teacher and imam. His transformation from citizen to terrorist caused the U.S. government to offer a $7 million reward for information leading to him.The National Security Agency (NSA), along with its intelligence community partners, spent over two years, from 2014 to 2016, looking for Hajji Iman. This search was ultimately successful based almost exclusively on intelligence activities under Section 702.Beginning with non-Section 702 collection, NSA learned of an individual closely associated with Hajji Iman. NSA used collection, permitted and authorized under Section 702, to collect intelligence on the close associates of Hajji Iman. This allowed NSA to develop a robust body of knowledge concerning the personal network of Hajji Iman and his close associates.Over a two-year period, using the FISA Section 702 collection, the intelligence community produced more intelligence on Hajji Iman’s associates, including their location. NSA and its tactical partners then combined information to identify Hajji Iman and track his movements. Ultimately, this collaboration enabled U.S. forces to attempt and apprehension of Hajji Iman and two of his associates. On March 24, 2016, during the attempted apprehension operation, shots were fired at the U.S. forces’ aircraft from Hajji Iman’s location. U.S. forces returned fire, killing Hajji Iman and the other associates at his location. Subsequent Section 702 collection confirmed Hajji Iman’s death.

Example: Section 702 was critical in thwarting a plot to attack the New York subway system


A plot to attack the New York subway system was foiled, in large part, because of the information collected via Section 702. In 2009, federal officials arrested Najibullah Zazi, an Afghan national living in Colorado, as he was en route to New York to carry out the subway bomb plot. Zazi was discovered, according to the criminal complaint, after he corresponded with an email address used by an al Qaeda courier in Pakistan. The emails sought advice on how to build explosives and were collected under a Section 702 warrant. Zazi eventually pleaded guilty to conspiring to detonate explosives in the United States. "Without the initial tip-off about Zazi and his plans, which came about by monitoring an overseas foreigner under Section 702, the subway bombing plot might have succeeded," according to an ODNI document describing several examples of the value of 702 data.

More examples of Section 702’s effectiveness: Istanbul, Trinidad & Tobago


The ODNI also cites information gathered through 702 as helping to identify a perpetrator of a 2016 New Year's Eve attack on an Istanbul nightclub, as well as helping to expose an ISIS recruiter from Trinidad and Tobago, along with his network.









Additional support may be in classified reports


The public record suggests that the Section 702 program has indeed helped in the fight against terrorism. Classified records might provide additional support for this conclusion but they are unavailable to us.

A/T: New York Subway threat wasn’t stopped by Section 702 information

Paul Rosenzweig, Charles Stimson and David Shedd 2016. (Paul Rosenzweig is a Visiting Fellow at the Heritage Foundation; Charles Stimson is a widely recognized expert in national and homeland security, a senior legal fellow at The Heritage Foundation, and an accomplished trial lawyer; David Shedd is a Visiting Fellow at Davis Institute for National Security and Foreign Policy) “Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program”. May 13, 2016. The Heritage Foundation. https://www.heritage.org/defense/report/maintaining-americas-ability-collect-foreign-intelligence-the-section-702-program. (Brackets added)

A few critics of the 702 program have disputed its actual impact in the New York City Subway Attack Plot and the Chicago Terror Investigation. The Guardian interviewed several people who were involved in the two investigations and reviewed U.S. and British court documents. Based on this incomplete record, The Guardian concluded that these investigations began with “conventional” surveillance methods—such as “old-fashioned tip-offs” of the British intelligence services—rather than from leads produced by NSA surveillance.But the fact remains that current and former intelligence officials, members from both political parties across two Administrations, national security law experts in the private sector, and the PCLOB [Privacy and Civil Liberties Oversight Board] maintain that 702 has been and continues to be a very important intelligence tool for overseas intelligence collection.

Brink: There is no substitute for 702. Impact: US citizens and our allies get attacked


The heads of the CIA, the ODNI, the FBI, the Justice Department and the NSA called the program "vital" in a rare joint statement in December. "There is no substitute for Section 702. If Congress fails to reauthorize this authority, the intelligence community will lose valuable foreign intelligence information, and the resulting intelligence gaps will make it easier for terrorists, weapons proliferators, malicious cyber actors, and other foreign adversaries to plan attacks against our citizens and allies without detection," they warned.

Impact: Terrorism. 702 is key to fulfilling government’s job to stop terrorism


The first priority of the federal government is to provide for the safety and security of the American people. FISA, and the use of Section 702, is one of our most effective intelligence tools we have and it has helped thwart terror attacks around the world, like preventing Al Qaeda from carrying-out a suicide bombing in the New York City subway system. The safety of the American people, and the protection of our troops serving in combat zones overseas, depends on effective programs like this one.











WORKS CITED

1. Jessica Schneider 2018. (award-winning journalist and attorney) “What is Section 702 of FISA, anyway?”. January 11, 2018. CNN. https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html

2. Paul Rosenzweig, Charles Stimson and David Shedd 2016. (Rosenzweig is a Visiting Fellow at the Heritage Foundation. Stimson is a widely recognized expert in national and homeland security, a senior legal fellow at The Heritage Foundation, and an accomplished trial lawyer. Shedd is a Visiting Fellow at Davis Institute for National Security and Foreign Policy) “Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program”. May 13, 2016. The Heritage Foundation. https://www.heritage.org/defense/report/maintaining-americas-ability-collect-foreign-intelligence-the-section-702-program

3. Bruce Fein 2017. (served as associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and is now a partner in the firm Fein & DelValle, PLLC) “FISA section 702: Repeal or scale back”. December 20, 2017. The Washington Times. https://www.washingtontimes.com/news/2017/dec/20/fisa-section-702-repeal-or-scale-back/

4. Louise Matsakis 2018. (staff writer at WIRED covering cybersecurity, internet law, and online culture) “CONGRESS RENEWS WARRANTLESS SURVEILLANCE—AND MAKES IT EVEN WORSE”. January 11, 2018. Wired. https://www.wired.com/story/fisa-section-702-renewal-congress/

5. Peter Swire, Richard Clarke 2017. (Peter Swire is the Elizabeth and Tommy Holder Chair of Law and Ethics at the Georgia Tech Scheller College of Business, a Senior Counsel to Alston & Bird LLP, and Senior Fellow of the Future of Privacy Forum. Dick Clarke is CEO of Good Harbor LLC, a boutique cyber security/risk management consultancy. Clarke has served in the White House, the Pentagon, the Intelligence Community, and the State Department. He was an Assistant Secretary of State for Political Military Affairs in the first Bush administration and Deputy Assistant Secretary of State for Intelligence under President Ronald Reagan.) “Reform Section 702 to Maintain Fourth Amendment Principles”. October 19, 2017. The Lawfare Institute. https://www.lawfareblog.com/reform-section-702-maintain-fourth-amendment-principles

6. Jack Goldsmith, Susan Hennessey 2018. (Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Special Counsel to the Department of Defense from 2002-2003. Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.) “The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)”. January 18, 2018. The Lawfare Institute. https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law

7. U.S. House of Representatives Permanent Select Committee on Intelligence. “FISA Section 702 Debate”. https://intelligence.house.gov/uploadedfiles/updated_usp_fact_check.pdf

8. American Bar Association 2018. “FISA law has built-in privacy protections, Townsend says at ABA breakfast”. Jan 12, 2018. American Bar Association. [The American Bar Association is one of the world’s largest voluntary professional organizations, with over 400,000 members and more than 3,500 entities. Founded in 1878, the ABA is committed to supporting the legal profession with practical resources for legal professionals while improving the administration of justice, accrediting law schools, establishing model ethical codes, and more.] https://www.americanbar.org/news/abanews/aba-news-archives/2018/01/fisa_law_has_built-i.html

9. Gregory Korte 2017. (White House correspondent for USA TODAY; won the Gerald R. Ford Foundation Prize for Distinguished Reporting on the Presidency in 2017) “What is 'unmasking?' How intelligence agencies treat U.S. citizens”. April 4, 2017. USA TODAY. https://www.usatoday.com/story/news/politics/2017/04/04/what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368/

10. Dutch Ruppersberger 2018. (serving his eighth term in the United States House of Representatives for the citizens of Maryland’s 2nd District) “RUPPERSBERGER ISSUES STATEMENT ON REAUTHORIZATION OF SECTION 702 OF FOREIGN INTELLIGENCE SURVEILLANCE ACT”. Jan 11, 2018. https://ruppersberger.house.gov/newsroom/press-releases/ruppersberger-issues-statement-on-reauthorization-of-section-702-of-foreign




11. Chuck Grassley 2018. (republican senator for Iowa; elected to Iowa Legislature 1958; U.S. House of Representatives 1974, U.S. Senate 1980; education: M.A. 1956 Political Science, University of Northern Iowa; Ph.D. work, University of Iowa) “Grassley on Section 702 Reauthorization: "...we must make sure that those who protect us have the tools to keep us safe"”. Jan 16, 2018. https://www.grassley.senate.gov/news/news-releases/grassley-section-702-reauthorization-we-must-make-sure-those-who-protect-us-have

12. Richard Fontaine 2018. (President of the Center for a New American Security; he also worked at the State Department, the National Security Council and on the staff of the Senate Foreign Relations Committee) “Commentary: Why the FISA Act Isn’t the Privacy-Stealing Monster Some Think It Is”. January 23, 2018. Fortune. http://fortune.com/2018/01/23/section-702-fisa-terrorism/

13. U.S. Rep. Lloyd Smucker 2018. (Republican member of the U.S. House of Representatives for Pennsylvania's 16th congressional district; previously a member of the Pennsylvania State Senate, representing the 13th District from 2009 to 2016) “SMUCKER STATEMENT ON REAUTHORIZATION OF FISA SECTION 702”. January 11, 2018. https://smucker.house.gov/media/press-releases/smucker-statement-reauthorization-fisa-section-702



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