ODNI lobbies for FISA 702 reauthorization

On the long to-do list for Congress this year is the reauthorization of the amendments to the Foreign Intelligence Surveillance Act, and the Office of the Director of National Intelligence is turning up the heat on Congress to make sure Section 702 in particular gets renewed.

The ODNI released a 10-page fact sheet on Section 702 that details the nature of the program, its authorities and how it works to benefit national security. ODNI published the document as Congress is set to return from its Easter recess.

The provision authorizes the U.S. to conduct warrantless surveillance of non-U.S. persons who are located on foreign soil. The program is used extensively to gather intelligence on terrorist groups and individuals as well as other national security threats.

U.S. persons are routinely swept up in such surveillance when they are communicating with a foreign target. Section 702 includes procedures designed to protect the privacy of innocent Americans and to prevent 702 from being used as an end-run around warrant requirements to monitor Americans.

"The government may not target someone located outside the United States for the purpose of targeting a particular, known person in this country or any U.S. person, regardless of location (often called "reverse targeting")," the fact sheet stated.

Section 702 requires that the IC "minimize" the information on Americans who are incidentally swept up and authorizes a limited number of officials to "unmask" information about Americans.

This provision has been at the center of much of the controversy around FISA surveillance and Section 702 this year. The IC swept up some of President Donald Trump's advisors and associates last year in communications with foreign targets. There have since been allegations that intelligence officials improperly unmasked and leaked the identities of Trump associates to the media.

Those allegations were front and center during a House Permanent Select Committee on Intelligence hearing in March where the heads of the National Security Agency and the FBI testified about their ongoing investigations into possible coordination between Trump associates and Russian officials to influence the 2016 presidential election.

A number of Republicans known for strong support of national security and surveillance programs threatened that if the leakers were not prosecuted, Congress might not be able to reauthorize Section 702 before it sunsets at the end of 2017.

That only added to growing challenges Section 702 has been facing from critics who say the act lacks transparency about how many Americans are incidentally collected and in what kinds of criminal cases such intelligence could actually be used against Americans.

In the fact sheet, the ODNI acknowledged the mounting requests by members of Congress for an estimate of the number of Americans incidentally collected. The document stated that it might not be possible to provide any reliable estimate.

"For example, communicants do not usually self-identify or indicate their citizenship when communicating with the target," the document stated. "However, the IC recognizes the valid desire to have some sense of the nature of acquisition of incidental U.S. person communications and is working to produce a relevant metric that will inform the reauthorization debate."

Some leading Republicans have implied that Section 702 might need revisions to increase transparency and accountability in order to get the votes needed for reauthorization. The IC is hoping for a clean reauthorization, and the central thrust of the ODNI document is to argue the national security value of 702.

The document offered several examples of how surveillance led to the interdiction of shipments of prohibited military equipment to a country under sanctions, the recruitment of an al-Qaida sympathizer into an intelligence asset and the capture of ISIS-affiliated militants who were planning attacks on U.S. personnel and interests.

"Losing these authorities would greatly impair the ability of the United States to respond to threats and to exploit important intelligence collection opportunities," the document stated.