A Pound of Flash: Rhetoric Versus Reality When FISA Section 702 is Not Too Big to Fail

Hours ago, the Privacy and Civil Liberties Oversight Board (PCLOB) released its long awaited report on FISA Section 702. While what follows is not an analysis of that report—Lawfare will provide coverage in the coming days—a first glance reveals that the five members of the PCLOB split down party lines on recommending that Congress should require the government to obtain authorization of the Foreign Intelligence Surveillance Court in order for the government to access the results of any query using U.S. person query terms (think names, email addresses, and the like).  

On Dec. 31, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire, and debates over whether or not Congress should reauthorize the authority and what reforms should be made to it have only intensified as the date draws closer. During an episode of the Lawfare Podcast in July with Deputy Homeland Security Advisor Joshua Geltzer, Lawfare Editor in Chief Benjamin Wittes compared the expiration of 702 to the national security version of a debt ceiling crisis. Geltzer did not disagree.

Section 702, originally passed in 2008, authorizes the intelligence community to target and acquire foreign intelligence information of non-U.S. persons reasonably believed to be outside the United States. While U.S. persons cannot be targeted, their communications may be incidentally collected when they are in contact with a 702 target. In contrast with traditional FISA collection, 702 collection occurs without a court making any kind of individualized, probable cause finding. Although a court does review the surveillance at a programmatic level, the particular collections are warrantless, and, once information is collected, agencies from the intelligence community can query databases containing 702 information for a number of different purposes. 

It is a high-value authority—one that has saved lives. And yet it is also a controversial authority.

The most controversial aspect of 702—which, to be clear, is just one way the government uses 702 information for national security purposes—concerns the FBI’s ability to query databases with U.S. person selectors without obtaining additional approval from a court. The Biden administration is arguing against reforms to 702 that would require the FBI to obtain a probable cause warrant or other court order before conducting these U.S person queries. 

In the current political environment, Congress could very likely allow Section 702 to expire unless significant reforms are made. If the administration persists outright in opposing court orders for U.S. person queries —at least in a way that inhibits constructive reform and compromise over this most controversial element of 702—and Section 702 expires, it too becomes part of a dynamic that, in the administration’s own words, places the United States at “the brink of a self-inflicted national security calamity.” Instead, the administration should be directly engaging on the issue and providing Congress with technical advice and assistance to make any reforms more workable, even if it doesn’t like what Congress intends to do. 

As the Biden administration is well aware, even if it doesn’t say so publicly, 702 reauthorization in 2023 takes place in an unusual political atmosphere where the FBI no longer commands the virtually universal and unqualified support it has traditionally enjoyed from Republican members of Congress. 

When I was a majority counsel to the House Judiciary Committee working on PATRIOT Act reauthorization in 2009, Republicans in Congress were reliable votes for reauthorization of surveillance authorities and reliable supporters of federal law enforcement. Indeed, in 2009, I witnessed the Obama administration's Justice Department getting a much friendlier reception and receiving more support from House Republicans than from House Democrats, who were then in the majority, for the reauthorization of expiring FISA authorities. Republicans, of course, were similarly once reliable supporters of the military—but preventing soldiers and military families from receiving financial support for travel to obtain abortions has apparently now trumped their traditional interests in military readiness and national security. 

Like the Biden administration, some former intelligence community lawyers are witnessing a meeting of the minds between House Judiciary Committee Chairman Jim Jordan and Ranking Member Jerry Nadler on the need to make significant reforms to Section 702. It is not a stretch to say that these members and their respective committee colleagues rarely agree on anything. To try and stop a potential alliance poised to require a warrant for U.S. person queries, these lawyers argue that “since the enactment of 702, left wing activists have tried to obtain a court approved warrant before running a query in a database.” In other words, they assert that left wing activists have somehow captured the debate. 

Bob Goodlatte, a former Republican Chairman and Ranking Member of the House Judiciary Committee, and Mark Udall, a former Democratic Senator, are deeply critical of the rhetoric being employed by these former intelligence community lawyers: “Their message to members of Congress is that if they embrace surveillance reform they will be ideological dupes of the other party and become enablers of fentanyl trafficking. These tactics are as despicable as they are desperate.” 

In reality, Republicans in Congress, who now distrust the FBI and the so-called "deep state," are more interested in reforming the FBI’s surveillance authorities than they’ve ever been in the years since Sept. 11.

While the burgeoning alliance between Democrats who have long sought surveillance reform and Trump-era congressional Republicans may invoke Bill Murray’s ominous words in Ghostbusters—“dogs and cats living together, mass hysteria”—this alliance is neither the sign of an impending apocalypse nor a warning that significant 702 reform efforts should be dismissed to avoid one. Even discounting the radical change in GOP congressional views toward the FBI that enable this strange political alliance—all but guaranteeing that some limits will be placed on the FBI’s ability to query 702 databases with U.S. person selectors if the law is to be reauthorized—the administration must still contend with the fact that the FBI has abused its authority to engage in U.S. person queries. It has repeatedly broken the law. 

These abuses have been documented by the Foreign Intelligence Surveillance Court and include, among other instances, improper queries pertaining to an investigation of U.S. citizens participating in the George Floyd protests of summer 2020, improper queries relating to individuals allegedly tied to Jan. 6, 2021 attack on the U.S. Capitol, along with improper queries connected to 19,000 donors supporting an unnamed congressional candidate. While intentional misconduct by the FBI was found to be “exceedingly rare,” as noted in a recent report by the President’s Intelligence Advisory Board, these abuses clearly illustrate that the FBI’s compliance failures with 702 rules is nevertheless a continuous and significant problem. 

Part of the problem may be that “Section 702 oversight and compliance processes are complex, resource intensive, and unable to allow for timely detection of noncompliance incidents.” Most compliance incidents are reported to “have been attributable to FBI’s pervasive lack of understanding regarding query standards.” Just as complexity can be the enemy of information security, so too can it compromise compliance efforts. Requiring some form of court order for all U.S. person queries—whether just applied to the FBI or to other intelligence agencies authorized to query databases containing 702 information—would be a simpler rule to understand, even if it requires significant resources to execute. 

Moreover, a warrant may not be as much a drag on effectiveness as its opponents believe. Indeed, the most useful intelligence is not always the product of warrantless surveillance. As Jim Baker, former FBI General Counsel, explains, “[t]he U.S. military and intelligence community operationally dismantled al-Qaeda, but it wasn’t because of Stellarwind [the cover name for four surveillance programs that included a predecessor program to Section 702 authorizing the warrantless collection of international telephone and Internet communications of both U.S. and non-U.S. persons]. It was, in significant part, because of collection pursuant to warrants.”

While the administration readily accepts that there are problems and abuses, its answer is to institute more internal reforms that don’t involve obtaining a probable cause warrant or other kind of individualized court order from an independent, neutral third party. There are concerns that the FBI won’t always be able to meet a probable cause standard for U.S. person queries that serve a legitimate national security interest. Even when it can, the added process of obtaining a warrant or other kind of order from a court may unduly hinder the speed at which it needs to run U.S. person-based queries. 

Other concerns involve the long-term implications of a standard that imposes additional restrictions on the government looking at information that has already been lawfully collected. Here, in addition to the ongoing heavy expenditure of resources that additional restrictions may entail, there is a significant tension between the government’s view that U.S. person queries of databases containing 702 information already comply with the Fourth Amendment and that of some members of the civil liberties community who have long argued that U.S. person queries are “backdoor searches,” which should require a warrant. The constitutional issue arises because the communications of U.S. persons, while not specifically targeted for 702 surveillance, can nevertheless be incidentally collected and subsequently queried later in time. While the Fourth Amendment does not apply extraterritorially to those non-U.S. persons who are targeted for surveillance, there is an argument that querying or searching 702 databases with U.S. person selectors is a separate Fourth Amendment event or search—one that “requires its own Fourth Amendment justification.”

There is limited case law relevant to this question and the issue remains unresolved. Perhaps the government’s view will ultimately prevail in court, perhaps it won’t. In recent years, courts have substantially changed their views on Fourth Amendment protections pertaining to cell phone searches and law enforcement access to location data. Law enforcement must now obtain a warrant to place GPS-tracking devices on cars, search cell phones (even incident to arrest), and compel the production of at least seven days of historical location data. Fourth Amendment law has not remained static over time and, while often slow to change, doctrine can evolve as new technologies or surveillance programs and authorities impinge upon privacy interests. 

Congress does not need to resolve the issue of whether and under what circumstances Fourth Amendment protections apply to such queries and whether warrants would be required under all circumstances. In the interests of preventing further abuses and providing a greater degree of privacy protections, Congress can require the FBI to obtain a warrant based on probable cause or court order under a less burdensome standard for all U.S. person queries, or different standards for different purposes. But the trick is to construct the standard(s) in a way that enables the government to engage in U.S. person queries for a range of legitimate national security purposes. When thinking about a probable cause standard, the operative question is “Probable cause of what?” To obtain a search warrant in a criminal investigation, the government must establish that there is probable cause to believe that evidence of a crime, contraband, fruits of crime, or other items illegally possessed; or property designed for use, intended for use, or used in committing a crime will be found in the place or person to be searched or thing to be seized. To obtain a FISA wiretap order, it must establish that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. 

When drafting a new 702 U.S. person query standard or standards, that question must be answered with criteria that fully account for the legitimate national security purposes that these queries serve. If Congress chooses to impose a probable cause standard, an additional component, as Baker explains, is ensuring that the government does not interpret probable cause “too narrowly.” Nonetheless, there will be times when the government cannot meet the standard, however it is defined—a risk that Congress must understand and accept. If a probable cause standard does not enable U.S. person queries for the range of legitimate national security purposes that U.S. person queries serve, then Congress can look to impose a less burdensome standard through court orders as well.

In moving forward, the administration has a critical role to play in assisting Congress with drafting the standard(s), baking in emergency exceptions and other elements to allow for greater speed and agility, along with asking Congress for the additional resources it will need to comply with a more burdensome standard(s). 

When the government supports new laws or changes to existing laws, it often provides technical advice and assistance to Congress. Sometimes that comes in the form of draft legislation it submits to Congress, other times it involves written or verbal feedback—in a constructive manner—on draft legislative text provided by Congress. The government is generally less enthusiastic about helping Congress when it doesn’t agree with the changes to the law that Congress plans to make. And sometimes the government can effectively stop legislation that it doesn’t like by pointing out how a bill, as drafted, will create a host of problems—without providing advice or making an effort to help Congress fix those problems consistent with congressional intent for the legislation. When votes are close, either in getting a bill out of committee or on the House or Senate floor, this can be an effective strategy.

Matt Olsen, the Assistant Attorney General of the National Security Division, gave a speech at the Brookings Institution in February as part of making the government’s case for 702 reauthorization. During the question-and-answer session, David Kris, a former Assistant Attorney General of the National Security Division during the Obama administration, who was listening remotely, provided a question for Benjamin Wittes to ask Olsen: “How will the administration meet the demands of the traditional civil liberties constituencies and the newer concerns on the other side of the political spectrum, and if the solution for both lies ultimately in significantly limiting FBI authorities and access to 702 data, will the administration ultimately make the hard choice to cut off a finger to save the hand?”  

Acknowledging that the administration would work with Congress, but offering no such ounce of flesh, much less a pound, Olsen replied, “I’m hoping to have to do no amputations during the course of this reauthorization.”

Several months have passed since that exchange. The administration’s current strategy may be to dig in its heels and throw sand in the gears of any effort to create a court order requirement for U.S. person queries. But in the current political environment, that comes with a very high risk of losing 702 altogether. Instead, the administration should be providing the relevant congressional committees with technical advice and assistance, both in order to craft a workable legal standard(s) and to enable the reauthorization of Section 702.