The US President’s Intelligence Advisory Board (PIAB) has issued a crucial report supporting the reauthorization of Section 702 under the Foreign Intelligence Surveillance Act (FISA). The report also includes recommendations to introduce measures that prevent potential abuses of this controversial provision.
Section 702 of FISA allows for targeting individuals reasonably believed to be located outside the United States to acquire foreign intelligence information. Originally designed for international intelligence gathering, Section 702 has also become a significant part of the FBI’s domestic intelligence strategy, leading to incidental collection of communications from US citizens. With the reauthorization of Section 702 scheduled for the end of 2023, the PIAB’s report has become highly relevant.
The report delves into various aspects of Section 702, assessing the effectiveness of data collections made under the provision and the current oversight procedures to curb misuse. Moreover, the report evaluates the value of data collection under Section 702 concerning US nationals. It emphasizes that signals intelligence, enabled by Section 702 information, plays a vital role in shaping major national security decisions both now and in the future. However, it raises concerns about the need for enhanced oversight, citing the existing reforms implemented since 2021 by the Federal Bureau of Investigations (FBI) as insufficient to gain public trust.
The report highlights that in 2021, over half of the FBI’s queries involved US persons. While some have suggested requiring warrants for Section 702’s use in collecting US data, the report argues against this approach due to practicality and potential delays in detecting threats. Instead, it suggests strengthening the FBI’s internal compliance regime to ensure proper usage of Section 702.
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Although the report acknowledges some “noncompliant” queries made under Section 702 in response to events like the January 6th insurrection and protests over the killing of George Floyd, it concludes that data gathering has mostly been conducted appropriately since the introduction of reforms in 2021.
The PIAB report presents several recommendations, including revoking the FBI’s authority to use Section 702 collection procedures in non-national security-related crimes, implementing more stringent pre-approval processes, and establishing an external review board within the Office of the President.
National Security Advisor Jake Sullivan and Principal Deputy National Security Advisor Jon Finer have expressed support for the report, concurring with the experts’ unanimous conclusion that failure to reauthorize Section 702 could lead to a significant intelligence failure. The FBI has also voiced its agreement with the report’s findings.
Under Section 702, data collection programs such as the Planning Tool for Resource Integration, Synchronization, and Management (PRISM) and Upstream have been employed. These programs involve the collection of communications from internet service providers, including tech giants like Apple and Google, as well as data from telecommunication companies like AT&T and Verizon. PRISM and Upstream first came to public knowledge in 2013 when whistleblower Edward Snowden disclosed their existence.
Notably, watchdog organizations, such as New America, have documented instances of Section 702 being used in a “noncompliant” manner, while civil liberties groups like the American Civil Liberties Union (ACLU) and the Wikimedia Foundation have long contested the provision. However, despite these challenges, the US Supreme Court has declined to hear the case, leaving the issue unresolved.
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