In the aftermath of the terrorist attacks of September 11, 2001, the intelligence community and Federal law enforcement, particularly the Federal Bureau of Investigation (FBI), were heavily criticized for failing to connect the dots that could have prevented those attacks. Congress established Section 702 to provide our intelligence and law enforcement professionals with legal authority to collect foreign intelligence critical to national security. Section 702 authorizes the Attorney General of the United States and the Director of National Intelligence to acquire foreign intelligence through targeted surveillance of foreign individuals reasonably believed to be outside the United States. Section 702 strictly prohibits targeting U.S. citizens, legal permanent residents, groups substantially composed of U.S. persons and U.S. corporations.
The independent Privacy and Civil Liberties Oversight Board (PCLOB) published its most recent “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act” on September 28, 2023, and the PCLOB’s policy analysis determined that “…the Section 702 program has been highly valuable in protecting the United States from a wide range of foreign threats, including terrorist attacks in the United States and abroad, cyber-attacks on U.S. critical infrastructure, and both conventional and cyber threats posed by the People’s Republic of China (PRC), Russia, Iran, and the Democratic People’s Republic of Korea (DPRK).” However, the PCLOB also determined that the advantages and unique capabilities of Section 702 also “…poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries.”
The PCLOB’s concerns over permissible targeting scope, the definition of “foreign intelligence information” and the lack of codification of the current limited 12 objectives for signals intelligence, align with prior Federal Court findings that found it is impossible to conduct Section 702 targeted foreign intelligence operations of electronic communications without incidentally collecting communications of U.S. persons, such as when an American communicates with a foreign target abroad or discusses a foreign target’s email address or phone number. That is why incidental collection of U.S. electronic communications must be carefully monitored, and proactive safeguards must be preserved, such as ending “abouts” collection, which was appropriate given the absence of any identified mission need for such activities.
I support implementing additional checks and limitations to ensure a more precise collection of a foreign target’s electronic communications. In its September 2023 report, the PCLOB provided Congress with eight thoughtful recommendations that the independent agency believes will preserve Section 702’s highly valuable contributions to national security and counterterrorism operations, while reducing risks of violating privacy rights and civil liberties—and I support carefully considering each of these proposals as Congress seeks to develop a bipartisan Section 702 reauthorization that enables the Federal Government to continue to use the unique capabilities of Section 702 for legitimate foreign intelligence surveillance, while strengthening legal safeguards to prevent abuse and enhancing oversight to hold personnel accountable who violate constitutional, statutory, regulatory or policy requirements or guidance.
Thank you again for taking the time to share your views with me on this challenging issue. This is an important national debate. Many of the concerns you raised are valid and inform my efforts to strengthen oversight and accountability of Section 702 implementation. My constitutional oath requires balancing the concurrent goals of securing the blessings of liberty, while establishing justice, ensuring domestic tranquility and providing for the common defense. Given the FBI Director’s repeated warnings to Congress of the alarming spike in simultaneous elevated threats of terrorism against the United States, I determined the most prudent, though imperfect, course of action was temporarily extending Section 702 statutory authorities to enable Congress to continue debating how best to reauthorize and reform Section 702 without impeding ongoing foreign intelligence collection or counterterrorism operations. While I recognize we may disagree over this balanced approach, please be assured that I will keep your views in mind as I continue working to strengthen oversight and accountability of Section 702 activities moving forward.
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