Reauthorization of Section 702 Foreign Intelligence Surveillance Act FISA was absolutely essential to national security. So why is every renewal of this critical intelligence capability met with such controversy? The answer lies in a fundamental misunderstanding of how 702 works, combined with concerns about past abuses of 702 that have already become policy and now legal impossibilities.

of The most vocal opponent 702 lawmakers frequently repeat the talking point that characterizes FISA as a “warrantless spying tool against Americans.” This scare tactic, perhaps intentionally, sows a fundamental misunderstanding of the current 702 process and the unquestioned value of this national security tool. Other lawmakers have reasonably called for reform of the inquiry process for collected information, increased transparency, and stronger penalties for violations. Finally, previous FISA warrant applications have been filled with questionable information that was not disclosed to the FISA judges. Crossfire Hurricane That's the one that comes to mind right away. These concerns conceptually merit responsible discussion. But they are not enough to justify abandoning 702.

While many supporters of Section 702 acknowledge reasonable concerns, they fundamentally support the idea that Section 702 is essential to national security. Moreover, supporters recognize that at this point in history, our nation’s intelligence communities (ICs) need to have the ability to deploy powerful tools to protect the homeland from foreign terrorist organizations and malign nation-state actors. While this latest reauthorization round was hard-fought, supporters crafted a reauthorization bill that included 56 significant reforms that would increase penalties and put in place an oversight process to alleviate some of the aforementioned concerns, and passed the bill on April 20. President Biden extended FISA 702. These new reforms will remain in place for another two years.

To better understand the 702 controversy, it is important to understand how basic FISA surveillance unfolds. As the name suggests, the first targets of FISA surveillance are everytime Foreigners abroad. This capability does not invite any serious objections. However, if a US person communicates with a monitored foreign person, that communication will also be captured and stored by IC, even if it is entirely harmless and mundane. After all, a “communication” typically involves multiple people. For example, imagine that a monitored member of Hamas contacts a US person who indicates a willingness to support Hamas. “Incidental Collection“ Although a U.S. person's communications can provide actionable intelligence, if the federal government wants to conduct electronic surveillance on that person, it must apply for and obtain it. another A FISA probable cause order would need to be obtained from a FISA judge. In my experience, the probable cause standard is much higher and requires a very high bar to obtain such a warrant. Information gathered from incidental collection can be used to build probable cause. Additionally, if specific information is gathered about the location or potential victims of a terrorist attack, the FBI can alert potential victims to the threat. This is where the strength and utility of the 702 really shines.

Opponents of Section 702 base their opposition to the intelligence agencies' incidental collection of foreign communications, especially innocent communications with U.S. persons. The intelligence agencies and the FBI maintain the ability to query incidentally collected communications at any time. This is appropriately described as ” USPER QueryThe argument is that the communications of Americans were collected without a search warrant, thus violating the Fourth Amendment's protection against unlawful searches and seizures. Similar arguments have been made about incidental collection inquiries. Some have called for an additional warrant requirement for incidental collection inquiries of data or communications. Impulsively Abandon this feature entirely.

While these arguments are undoubtedly made with the best intentions by most of those making them, there are serious logical and constitutional flaws in his argument.

First of all, it is hard to believe those who claim that the Constitution requires that the U.S. government needs a warrant to inquire into data or communications already in its possession. If such a requirement were to be included in a future version of FISA, it would be a legal requirement, not a constitutional requirement. The government has already lawfully seized information that was inquired into in the original FISA process. Incidental collection of communications involving U.S. persons is already in the government’s possession. It is constitutionally unreasonable for the U.S. government to require a warrant for lawfully seized data or communications. In other words, new information is not “seized” and therefore there is no possibility of invoking Fourth Amendment protections. To take an example, would it make sense for the ATF to obtain a warrant to retrieve firearms seized in a DEA drug raid? Of course not. And in a matter of national security, it seems unreasonable to put up barriers to obtaining critical information that protects the homeland, especially when time is of the essence.

Abuse of USPER queries has also been a major topic of discussion, and is not without legitimate concerns. One oft-cited, but deliberately misleading, example of “FISA abuse” is: FISA's most vocal opponents It has been reported that FISA was used to spy on Americans 278,000 times in 2021 and 2022. In 2022 alone, the FBI used approximately 120,000 USPER queriesThat means over 250,000 Americans have been spied on by their own government. Of course, this is not true.

It is important to understand that the 278,000 USPER queries were not queries of 278,000 Americans, as is too often repeated by too many elected officials and critics. Most USPER queries concern the same people and query multiple identifiers, including names, emails, phone numbers, company names, addresses, IP addresses, etc. In fact, Less than 2% Over 98% of USPER queries actually produce search results. In other words, no Americans. The FBI has access to: 3% Since he fits all 702 criteria in the IC's database, the chances of him being involved in an international conspiracy are extremely low. Misleading people Americans have abandoned their own language, No. 278,000 It's not the number of Americans who were spied on that counts as “abuse” — the act of spying. But the damage to the FBI and 702 was already done. That was probably the point.Defund the FBIThis is chapter one of The Book of Bad Ideas.

The latest reauthorization of FISA directly addresses the legitimate concerns of opponents. The latest iteration of FISA requires the FBI to disclose the sources of information used to support probable cause affidavits and prohibits media reporting of probable cause. This increases the likelihood of another abomination occurring, such as: Crossfire Hurricane That will never happen again, even if an untouchable like Jim Comey rises to No. 7.Number First floor of the J. Edgar Hoover Building. Additionally, the new FISA imposes significant criminal penalties on anyone who misuses the FISA warrant or collection process. The new FISA reauthorization also adds the requirement that any application to initiate the FISA process must be approved by senior management. It also prohibits political appointees (such as the FBI Director or Attorney General) from initiating the FISA warrant process. Sorry Jim!

After revelations about the USPER inquiry came to light, FBI Director Chris Wray took charge. reform This is almost exactly what the latest version of FISA requires. In fact, some of the FBI's internal policies allow the bureau to take swift personnel action against those who abuse the FISA process, which was problematic in previous abuse cases. FBI personnel not assigned to national security issues no longer have access to raw FISA data. The FBI has established an Office of Internal Audit to oversee all aspects of FISA compliance. Finally, USPER queries must have 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 clearly articulated and approved by FBI counsel and/or senior management prior to conducting a USPER query. These reforms were so groundbreaking that the Foreign Intelligence Surveillance Court has issued a set of rules to allow the FBI to take swift personnel action against those who abuse the FISA process, which has been problematic in previous abuse cases. Praised Blame the FBI for compliance reform. Director Wray has many critics. I am not one of them. In my opinion, Director Wray has been paying the price for former Director Jim Comey's misconduct since he was fired.

Reasonable minds may disagree about whether the current FISA hinders the IC too much or not enough. Those who advocate for greater transparency in FISA and harsher penalties for those who misuse it are reasonable, and I wish the recent reauthorization had gone a little further. This is a legitimate debate over 702, and it was healthy for the national security apparatus and for the national debate over this tool. But what I hope we can all agree on is that our nation does not need fewer tools in our intelligence toolbox, but rather, our defense posture needs every imaginable, agile enhancement. War is escalating in Ukraine and Israel. China is constantly threatening military action against Taiwan. Foreign terrorist organizations are reconstituting and posing renewed threats to the United States. Foreign cyber attacks continue to increase in sophistication and frequency, targeting our military readiness, critical infrastructure, and economic sectors. Our porous borders have been crossed by unknown actors intent on causing harm to our homeland.

FISA 702 has saved countless lives, prevented countless attacks, and protected countless freedoms…And it's entirely possible that you're not even aware of all of them.The reauthorization process was difficult and contentious, but for those who won the fight, it was a small price to pay because another threat to our national security would be far too costly.

Jay Town is vice president and general counsel for Huntsville defense contractor Gray Analytics, Inc. He is a former U.S. Attorney for the Northern District of Alabama, a career prosecutor and a U.S. Marine.