The Reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) was absolutely vital to our national security. Why then is every bout to renew this essential intelligence capability met with such contention? The answer is coupled in a fundamental misunderstanding how 702 works and concerns about previous abuses of it already no longer possible by policy – and now by law.
The loudest opponents of 702 often parrot talking points referring to FISA as a “warrantless spy tool on Americans”. The scare tactic bakes in – perhaps intentionally – a fundamental misunderstanding of the current 702 process and the incontrovertible value of this national security tool. Others reasonably seek to reform the query processes of the information collected, with greater transparencies and penalties for transgressions. Finally, previous FISA warrant applications have been laden with flimsy information that was not disclosed to the FISA judge. The intrusive abuses of Crossfire Hurricane immediately come to mind. These concerns are conceptually worthy of responsible discussion. However, these concerns are not worthy of discarding 702!
Proponents of 702, many of whom acknowledge the reasonable concerns, fundamentally balance in favor of Section 702’s vitality to national security. Moreover, proponents recognize this point in history requires our intelligence community (IC) have the ability to deploy robust tools to protect the homeland from foreign terrorist organizations and nefarious nation state actors. In this latest round of reauthorization, which was a slugfest, the proponents crafted a reauthorization bill including 56 key reforms that increased penalties and installed supervisory processes to abate some of the aforementioned concerns, and on April 20th President Biden extended FISA 702 with these new reforms included for two more years.
To better grasp the contentiousness of 702, it is critical to understand how basic FISA surveillance is deployed. As the namesake suggests, the initial targets of FISA surveillance are always foreign persons abroad. This capability does not draw serious objections at all. However, should a U.S. person communicate with a surveilled foreign person, those communications are captured and kept by the IC as well, even if entirely innocuous or mundane. After all, “communication” typically involves more than one person. For instance, imagine a member of Hamas under 702 surveillance contacts a U.S person, and that U.S person indicates a willingness to support Hamas. The “incidental collection” of the U.S. person’s communications can serve as actionable intelligence, but if the feds wanted to conduct electronic surveillance of that U.S. person they would have to apply for and obtain a separate probable cause-based order under FISA from a FISA judge to do so. It’s my experience that obtaining such a warrant is an incredibly high bar, held to a much higher standard of probable cause. The information gathered from the incidental collection could be used to build that probable cause. Moreover, if specific information about a terrorist attack were gathered regarding location or potential victims, the FBI could warn those potential victims of the threat. This is the virtue and utility of 702 in a nutshell.
Section 702 opponents root their objections in the retention of the incidental collection of overseas communications by the intelligence community, especially those innocuous communications with U.S. persons. The IC and the FBI maintain the ability to query those incidentally collected communications at any time, or what is aptly referred as a USPER query. The argument is that communications by U.S. persons were collected without a search warrant and thus violates the Fourth Amendment protections against unlawful searches and seizures. The same argument is made for queries of the incidental collection. Some would like to see additional warrant requirements for the query of incidental collections of data and communications. Some would impulsively abandon this capability altogether.
These arguments, while undoubtedly made with best intentions by most of those making them, have serious logical and constitutional flaws with his argument.
First of all, those suggesting the constitutional requirement for a warrant to query data and communications already in the possession of the U.S. government is incredulous. Should future versions of FISA hold such a requirement, then that would be a legal requirement…not a constitutional one. The government has already lawfully seized the information being queried under the original FISA process. The incidental collection of communications involving U.S. persons are already in the government’s possession. It would be a constitutional absurdity to require the U.S. government to get a warrant for data or communications already lawfully seized. In other words, no new information is being “seized” and thus Fourth Amendment protections could not possibly be triggered. To illustrate, would it make sense to have the ATF get a warrant to collect the firearms seized in a drug bust by the DEA? Of course not. And in matters of national security, it seems illogical to erect barriers to obtaining critical information that protects the homeland, especially when time is of the essence.
Abuse of the USPER queries have also been a great point of contention, and not without legitimate concern. An oft cited, yet intentionally misleading, example of “FISA abuse” is the claim by the most vocal opponents of FISA that FISA was used to spy on Americans 278,000 times in 2021 and 2022. In just a portion of 2022 alone, the FBI conducted approximately 120,000 USPER queries. The implication is that over a quarter-million Americans were spied upon by their own government. This, of course, is not true.
It is important to understand that those 278,000 USPER queries were NOT queries of 278,000 Americans, as has often been repeated by too many elected officials and 702 critics. Most USPER queries involve the same person and query multiple identifiers, such as name, email, phone number, business name, address, IP address, and so on. In fact, less than 2% of all USPER queries actually produce a search result. In other words, over 98% of the time a USPER query intrudes upon NO American. It is important to realize that the FBI only has access to around 3% of all of the IC’s total 702 database, so the chances you will be caught up in a matter of international intrigue is infinitesimal. Even those who would mislead the American people have ceded their own vernacular and have begun referring to the 278,000 number as “abuses”, rather than the number of Americans “spied upon”. But the damage to the FBI and 702 had been done, which was likely the point. It even led to absurd calls to “defund the FBI”, which is Chapter 1 in the Book of Bad Ideas.
The latest reauthorization of FISA directly addresses the reasonable concerns of those in opposition. The latest iteration of FISA forces the FBI to disclose the sourcing of information used to support a probable cause affidavit and bans any media reporting from supporting probable cause. This makes the likelihood of another abomination like Crossfire Hurricane to ever occur again, even if someone as incorrigible as Jim Comey were to find their way to the 7th floor of the J. Edgar Hoover building. Moreover, the new FISA creates significant criminal penalties for those who would abuse the FISA warrant or collection processes. Added to the new FISA reauthorization is the requirement that any application to even begin the FISA process must be approved by senior leadership. It also bans political appointees (e.g., FBI Director or Attorney General) from initiating a FISA warrant process. Sorry Jim!
It is important to note that after the revelations concerning USPER queries were brought to light, the FBI Director Chris Wray responsibly installed reforms that mirrored much of what the latest iteration of FISA requires. In fact, some of the internal policies of the Bureau allow the FBI to quickly take personnel actions by those who would abuse the FISA process, something that has been an albatross in prior instances of abuse. FBI personnel not assigned to national security matters no longer have access to raw FISA data. The FBI created the Office of Internal Auditing with full oversight over FISA compliance. Finally, USPER queries require a specific factual basis that a search of 702 data will yield foreign intelligence information or evidence of a crime, all of which must be articulated and approved by FBI lawyers and/or senior leadership PRIOR to the performance of any USPER query. These reforms were so transformative that the Foreign Intelligence Surveillance Court praised the FBI for its compliance reforms. Director Wray has many critics. I am not one. In my opinion, Wray has paid the bar tab for former Director Jim Comey’s transgressions since Comey was fired.
Reasonable minds can disagree as to whether the current version of FISA has gone too far in hamstringing the IC or does not go far enough. Advocates for greater FISA transparency and severe consequences for those who abuse FISA are reasonable and would have liked the recent reauthorization to go a bit further. That is a legitimate debate over 702 and has been healthy for both our national security apparatus and the national debate surrounding the tool. But what I hope we all can agree upon is that our nation does not need fewer tools in the intelligence toolbox, but rather our protective posture needs every agile enhancement imaginable. Wars rage in Ukraine and Israel. China continually threatens military action against Taiwan. Foreign terrorist organizations have reconstituted and pose a resurgent threat to the United States. Foreign cyber-attacks continue to escalate in sophistication and frequency, targeting our nation’s military readiness, critical infrastructure, and economic sectors. Our porous border has been crossed by unknown subjects looking to harm our homeland.
FISA 702 has saved countless lives, prevented countless attacks, and preserved countless freedoms…and it is quite possible you are unaware of all of those instances! The reauthorization process was arduous and contentious, but such was a small price to pay for those who won this bout, because the alternative threat to our national security is just too costly.
Jay Town is the Vice President & General Counsel at Gray Analytics, a defense contractor in Huntsville. He is the former U.S. Attorney for the Northern District of Alabama, career prosecutor, and United States Marine.
The International Olympic Committee has granted China the 2022 Winter Olympic games, which are soon to be underway. The same IOC espouses on its website the values of excellence, friendship, and respect as being the three values of Olympism. Collectively, these values denote independence and freedom. The IOC concluded, by allowing China to host the games, that communist China is endowed by all the virtues of Olympism and is best suited to showcase them in Beijing.
But for all the evidence.
Everything from genocide to COVID cover-ups to economic espionage, China is truly what the world does not want in a preferred host of the Winter Games.
Perhaps the most obvious of China’s transgressions is China’s deliberate, systematic and concerted policy to reduce the Uyghur population, doing so through genocide, sterilization, forced abortion, detention and other putrid human rights abuses. When captured, Uyghurs are put into “re-education” camps and often put on trial for their crimes of not assimilating to mainstream Chinese culture (aka, having their own). The guilty verdicts are shocking! It is important to understand that the Uyghur is religious, speaks their own language and even have the audacity to have their own culture. They make up less than 2% of the Chinese population and live primarily in an isolated region of the country. The respect China shows such independence is what current U.S. Secretary of State Antony Blinken described as “genocide and crimes against humanity.” China denies all of this, of course. The Communist Chinese Party is, after all, endowed with the virtues of Olympism.
Not convinced? Well, what about COVID?
The world has shut down for two years now due to COVID-19. Was it bat soup? Was it the lab in Wuhan? Was it just a convolution of horrible luck for the entire planet that somehow inexplicably benefited the origin nation financially and politically? Was it just a regrettable misstep that China failed to inform the world for costly, critical weeks and months about the coronavirus? President Biden recently stated that China “was not being transparent” about the origins of COVID-19. Dr. Anthony Fauci says he’s now more open to the lab-leak theory and, despite several previous statements to the contrary, that he is “not convinced” COVID-19 came about naturally. The World Health Organization, to whom China gives tens of millions of dollars annually, is unable to draw conclusions as to the origin of COVID-19 because they are waiting on China to “provide more information and access.” And wait they shall. Communist China is focused on the ice dancing event.
Still think China and Olympics go together like peas and carrots? Chinese spies do, too.
FBI Director Christopher Wray recently testified before the Senate Homeland Security Committee that the Bureau is opening counterintelligence investigations into China every 12 hours. He continued by stating emphatically that “the greatest long-term threat to our nation’s information and intellectual property, and to our economic vitality, is the counterintelligence and economic espionage threat from China. It’s a threat to our…national security.” Over $540 billion in losses of intellectual property and trade secrets is attributed to China annually, which is a conservative number. Around 80% of all economic espionage cases allege conduct that benefitted China and 60% have a direct nexus to China. The previous and current administrations have imposed harsh sanctions on China for their unfair trade practices and economic espionage activities that span our entire economy, not just defense.
Having heard all this before, and caring less and less each time, China’s warm embrace of Olympism demands that every Olympic athlete download an application to their phones which has already been proven to pose significant cybersecurity and surveillance risks. As a result of this big red welcome mat, Team USA has been told to leave all their devices home and take “burner phones” to Beijing. Respect for our competitive friends preserved!
OK, maybe not peas and carrots. There aren’t any on the shelves anyway.
During COVID, the world noticed that the goods and products we were able to buy quickly for pennies were now ten times the price and unavailable. Price gouging was so prevalent for needed personal protection equipment in the early stages of the pandemic that President Trump had to use the Defense Production Act and other federal tools to ward off the price gouging that was coming from our economic partners in Shenzhen. But that is just a front-of-mind example of China’s disruptive control of global supply chains.
The Department of Defense assesses that there are 35 strategic materials necessary to produce armaments for our national defense. China leads the world in 16 of those 35 strategic materials. The U.S. has virtually no production, or is import reliant, on 32 of the 35 materials needed by the defense industrial base. Gallium (think microchips), graphite (think drone batteries), and aluminum (think everything else) are almost entirely sourced from China. And China has used its Belt and Road Initiative to buy up ports and mineral rights all over the world so they can further control and abuse global supply chains. Vulnerabilities to our supply chains, especially as they regard strategic materials, is a gap in national security…a gap in which China intends to exploit. But can’t you just feel the independence and freedom oozing out of the bottom of the Amazon box just delivered?
In communist China, nothing says freedom or respect like the provocation of war.
Tensions between Taipei and Beijing span decades, but they are currently at their highest point. China continues their constant naval and air presence around Taiwan. Recently, 39 Chinese military warplanes flew dangerously close to where the U.S. Navy was conducting exercises in the Philippine Sea. China’s Navy is constantly engaged in military exercises that the intelligence community concludes unveils China’s strategy to cut off allies from Taiwan in the event of a Chinese attack on the island of 23 million people (roughly the population of Florida). This sort of prelude to war by a nation of 1.5 billion people is exactly what we would expect out of the host of the 24th Winter Olympiad. Charm the world with beautiful pageantry…and then attack!
China is the enemy of freedom, devoid of the virtues that endow the Olympic games. Of course, we need to stand up for the oppressed. Yes, we need to reshore and diversify our supply chains. Sanctions must remain in place. Our cyber hygiene must improve. Investigations need to persist into those engaged in economic espionage and the theft of trade secrets.
But by all means, tune in to watch the curling and luge events. After all, the Olympic virtues of excellence, friendship, and respect will be on full display…by their absence.
Jay Town is the former U.S. Attorney for the Northern District of Alabama, served in the Marine Corps for 12 years, and is currently the Vice President & General Counsel at Gray Analytics.
The Northern District of Alabama is part of a nationwide offensive against violence in America’s cities. Last year, in response to President Trump’s directive to reduce crime and improve public safety, Attorney General Jeff Sessions announced the National Public Safety Partnership, an alliance of local and federal law enforcement agencies coordinating with community organizations to reduce violent crime in areas long plagued by it. The Attorney General selected Birmingham as one of the initial 12 PSP sites.
As the United States Attorney, I have brought together members of law enforcement across the spectrum of agencies, complemented by strategic community service providers, all assembled to address Birmingham’s high level of violent crime.
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